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Full text of "North Carolina Register v.11 no. 14 (10/15/1996)"

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NORTH CAROLINA 

REGISTER 



VOLUME U • ISSUE 14 • Pages 1101 - 1196 
October 15, 1996 



PUBLISHED BY 

The Office of Administrative Hearings 
Rules Division 
PO Drawer 27447 
Raleigh, NC 27611-7447 
Telephone (919) 733-2678 
Fax (919) 733-3462 



IN THIS ISSUE 

Executive Orders 

Tax Review Board 

Administration 

Agriculture 

Commerce 

Environment, Health, and Natural Resources 

Human Resources 

Housing Finance Agency 

Justice 

Nursing, Board of 

Soil Scientists, Licensing for 

Revenue 

State Persormel 

Transportation 

List of Rules Codified 

Rules Review Commission 

Contested Case Decisions 



.*;" 



nr 



This publication is printed on permanent, acid-free paper in compliance -with G.S. 125-11.13 



NORTH CAROLINA 




Volume 1 1 , Issue 1 4 
Pages 1 1 1 - 11 36 

October 15, 1996 



This issue contains documents officially 
filed through September 24, 1996. 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601) 

PO Drawer 27447 

Raleigh, NC 27611-7447 

(919) 733-2678 

FAX (919) 733-3462 



Julian Mann III, Director 

James R. Scarcella Sr., Deputy Director 

Molly Masich, Director of APA Services 

Ruby Creech, Publications Coordinator 

Teresa Kiipatrick, Editorial Assistant 

Jean Shirley, Editorial Assistant 
Linda Richardson, Editorial Assistant 



IN THIS ISSUE 

I. EXECUTIVE ORDERS 

Executive Orders 99-101 1 101 - 1 103 

II. IN ADDITION 

Tax Review Board 1 104 - 1 106 

III. RULE-MAKING PROCEEDINGS 

Agriculture 

Markets 1 107 

Veterinary Division 1 107 - 1 108 

Enyironment, Health, and Natural Resources 

Wildlife Resources & Water Safety 1 109 

Human Resources 

Child Day Care Commission 1 108 

Medical Assistance 1 108 

Justice 

Criminal Justice & Training Standards 1 109 

Private Protective Services 1 108 - 1 109 

Licensing Boards 

Nursing, Board of 1 109 - 1 1 10 

State Personnel 

State Personnel Commission 1110 

rv. PROPOSED RULES 

Administration 

Administration's Minimum Criteria 1111-1113 

Commerce 

Community Assistance 1113 - 1124 

Environment. Health, and Natural Resources 

Environmental Management Commission 1136 - 1150 

Wildlife Resources & Water Safety 1150-1157 

Human Resources 

Mental Health, Developmental Disabilities and 

Substance Abuse Services 1 124 - 1 136 

Justice 

Alarms Systems Licensing Board 1136 

V. TEMPORARY RULES 

Environment, Health, and Natural Resources 

Marine Fisheries Commission 1153 - 1154 

Independent Agencies 

Housing Finance Agency 1 154 - 1 155 

VI. APPROVED RULES 1 156 - 1 170 

Environment, Health, and Natural Resources 

Health Services 

Wildlife Resources & Water Safety 
Licensing Boards 

Soil Scientists, Licensing for 
Revenue 

Departmental Rules 
Transportation 

Deputy Secretary - Transit, Rail, and Aviation 

Highways, Division of 

Motor Vehicles, Division of 

VII. LIST OF RULES CODIFIED 1 171 - 1 172 

VIII. RULES REVIEW COMMISSION 1173-1180 

DC. CONTEST CASE DECISIONS 

Index to ALJ Decisions 1181-1190 

Text of Selected Decisions 

95 EHR 0048 1 191 - 1 195 

X. CUMULATIVE INDEX 1-31 



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C/5 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NO. 99 

EMERGENCY RELIEF FOR DAMAGE 

CAUSED BY HURRICANE FRAN 

WHEREAS, I have proclaimed that a state of 
emergency and threatened disaster exists in North Carolina 
due to Hurricane Fran; and 

WHEREAS, the United States Department of 
Transportation, in conjunction with the North Carolina 
Department of Transportation, has declared a regional 
emergency justifying an exemption from 49 C.F.R. 390-399 
(Federal Motor Carrier Safety Regulations); and 

WHEREAS, under the provisions of N.C.G.S. 
166A-4(3) and 166A-6(c)(3), the Governor, with the 
concurrence of the Council of State, may regulate and 
control the flow of vehicular traffic and the operation of 
transportation services; and 

WHEREAS, with the concurrence of the Council 
of State, I have found that if vehicles bearing food, equip- 
ment, and supplies to reheve our hurricane-stricken counties 
must adhere to the weight restrictions of N.C.G.S. 20-88, 
20-96 and 20-118, citizens in those counties likely will 
suffer losses and, therefore, there is an imminent threat of 
widespread damage within the meaning of N.C.G.S. 
166A-4(3); 

THEREFORE, pursuant to the authority vested in 
me as Governor by the Constitution and laws of this State, 
and with the concurrence of the Council of State, IT IS 
ORDERED: 

Section Xi The Division of Motor Vehicles shall 
waive size and weight restrictions and penalties therefor 
arising under N.C.G.S. 20-88, 20-96, and 20-118 for 
vehicles transporting food, equipment, and supplies. 
Including necessary utility vehicles along our highways to 
North Carolina's hurricane-stricken counties. 

Section 2. Notwithstanding the waivers set forth 
above, restrictions and penalties shall not be waived under 
the following conditions: 

(A) When the vehicle weight exceeds the 
maximum gross vehicle weight criteria 
established by the manufacturer (GVWR) 
or 90,000 pounds gross vehicle weight, 
whichever is less. 

(B) WTien tandem axle weights exceed 42,000 
pounds and single axle weights exceed 
22,000 pounds. 

(C) When vehicle/vehicle combination exceeds 
12 feet in width and a total overall combi- 
nation vehicle length of 65 feet from 
bumper to bumper. 



Section 3^ 

(A) Upon entering North Carolina, the vehi- 
cles will stop at the first available vehicle 
weight station and produce identification 
sufficient to establish that its load will be 
used for the Hurricane Fran relief and 
recovery effort. All other safety restric- 
tions apply. If returning vehicles are 
loaded with backhaul unrelated to Hurri- 
cane Fran, all normal weight and permit 
restrictions apply. 

(B) The $50.00 fee listed in N.C.G.S. 
105^149.49 for a temporary trip permit is 
waived for the vehicles described above. 
Tlie penalties described in N.C.G.S. 
20-382 concerning insurance registration 
are waived also. Finally, no quarterly 
fuel tax is required because the exception 
in N.C.G.S. 105-449.45(a)(l) applies. 

(C) The vehicles will be allowed only in pri- 
mary and interstate routes designated by 
the North Carolina Department of Trans- 
portation. 

Section 4^ Vehicles described in Section 1 which 
are nonparticipants in North Carolina's International 
Registration Plan will be permitted to pass through North 
Carolina in accordance with the spirit of the exemptions 
identified by this Executive Order. 

Section 5^ The North Carolina Department of 
Transportation shall enforce the conditions set forth in 
Sections 1, 2, and 3 in a manner in which would best 
accomplish the implementation of this rule without endan- 
gering motorists in North Carolina. 

Section 6^ This Order shall not be in effect on 
bridges posted pursuant to N.C.G.S. 136-72. 

This Executive Order shall be effective immediately 
and shall remain in effect for 30 days. 

Done in the Capital City of Raleigh, North Carolina 
this 5th day of September, 1996. 

EXECUTIVE ORDER NUMBER 100 

ESTABLISHING THE GOVERNMENT 

INFORMATION LOCATOR SERVICE 

COORDEMATING COMMITTEE 

WHEREAS, North Carolina General Statute 
143-3.5 directs the Office of State Planning to coordinate 
the collection, development, dissemination, and analysis of 
statistical data in state government; and, 

WHEREAS, a global locator service for all state 
government databases is critical to performance planning 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1101 



EXECUTIVE ORDERS 



and budgeting; and, 

WHEREAS, North Carolina General Statute 
132-6. 1(b) requires that "every pubhc agency shall create an 
index of computer databases compiled or created by a public 
agency", but does not require coordination of formats across 
agencies, indexing of databases created prior to July 1, 
1996, or development of a global locator service; and, 

WHEREAS, North Carolina state government 
agencies are developing independent technical solutions for 
indexing their electronic databases; and, 

WHEREAS, North Carolina state government 
agencies are facing critical issues related to data standards, 
such as those resulting from the century-compliant date 
requirements for year 2000, the need to share data across 
agency boundaries and the requirements for managing 
software applications as state assets, issues the resolution of 
which require a searchable inventory of existing databases; 
and, 

WHEREAS, a unified and coordinated effort to 
develop a global government information locator service 
would provide agencies with tools for indexing their 
electronic databases, become a valuable management tool 
for all agencies, be more cost-effective if done collabor- 
atively rather than each agency developing technical solu- 
tions, improve the public's access to state government 
information, help to ensure compatibility with the federal 
government Information Locator Service (GILS), assist the 
Information Resource Management Commission with its 
responsibilities for data management programs, and assist 
the Office of State Planning in carrying out its missions of 
performance budgeting and planning and maintenance of a 
register of statistical data series. 

NOW, THEREFORE by the authority vested in me 
as Governor by the Constitution and laws of the Slate of 
North Carolina, IT IS ORDERED: 

Section L. Establishment of the Government Information 
Locator Service Coordinating Committee 

There is hereby established the Govenrnaent 
Information Locator Service Coordinating Committee 
("Committee"). 

Section 2^ Duties of the Committee 

A. Provide leadership and coordination in the 
development of an electronic Government Information 
Locator Service in North Carolina that will meet the needs 
of the state's citizens for improved access to state govern- 
ment information and meet the needs of state agency 
management for locating information related to measuring 
and evaluating programs and performance. 

B. Establish data indexing content standards for the 
locator service, adhering to the North Carolina public 



records law (Chapter 132 of the North Carolina General 
Statutes) and building upon the "Public Database Indexing 
Guidelines and Recommendations" developed by the 
Division of Archives and History, North Carolina Depart- 
ment of Cultural Resources. 

C. Establish technical standards for the locator 
service that will ensure compatibility with nationally and 
internationally recognized standards of electronic informa- 
tion exchange. 

D. Foster collaboration among state agencies to 
reduce duplication of effort and provide for an efficient and 
cost-effective locator service. 

E. Sponsor the development and demonstration of 
a prototype project or projects that provide appropriate tools 
for a global state government information locator service. 

F. Encourage and facilitate the development of 
high quality in data indexing information to describe state 
agency data resources and provide a sound basis for global 
indexing. 

G. Disseminate information among state agencies 
regarding standards, technology, indexing protocols, and 
other aspects of a locator service. 

H. Facilitate the exchange of state government 
information on a regional; national, and international basis. 

I. Coordinate data indexing content standards and 
information locator service prototype development with 
technology and data transfer standards established by the 
Information Resource Management Commission. 

Section 3^ Membership of the Committee 

The Director of the Office of State Plarming, or 
designated representative, will Chair the Committee. The 
State Librarian and the State Archivist, Department of 
Cultural Resources, will serve as "Vice Chairs. The agency 
heads of the following organizations shall designate mem- 
bers as provided below to serve on the Committee. 

A. Two representatives of the Office of State 
Planning in addition to the Chair; 

B. Two representatives of the Department of 
Cultural Resources in addition to the Vice Chairs; 

C. Two representatives of the Department of 
Administration; 

D. Two representatives of the Department of 
Correction; 

E. Two representatives of the Department of 
Environment, Health, and Natural Resources; 

F. Two representatives of the Department of 
Commerce; 

G. Two representatives of the Department of 
Human Resources; 

H. One representative of the Information Resource 
Management Division, Office of State Controller; 

I. One representative of the State Information 
Processing Services, Office of State Controller; 

J. One representative of the Office of State Budget 
and Management; 

K. One representative of the Association of County 



1102 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



EXECUTIVE ORDERS 



Commissioners; and 

L. One representative of the League of Municipali- 
ties. 

Additional agencies may be represented on the Committee 
as determined by the Committee. 

Section 4^ Agencies' Contributions 

Each represented agency will provide in-kind 
services, especially staff time, towards this Committee. 
In-kind services include the time invested by Committee 
members. 

Section 5^ Sub-Commit 

The Committee will establish sub-committees as 
needed to assist in such areas as technical standards, systems 
design, and programming. 

Section 6^ Time Period 

The Committee will convene by September 13, 

1996, meet at least monthly, develop a prototype by 
December 1996, and will complete its duties by December 

1997. This Executive Order shall terminate upon comple- 
tion of all duties by the Committee. 

This Executive Order shall become effective 
immediately. 

Done in Raleigh, North Carolina, this 12th day of 
September, 1996. 

EXECUTIVE ORDER NO. 101 
PSYCHOLOGISTS AND SOCIAL WORKERS 

LICENSED OR CERTIFIED OUT OF 

STATE PERMITTED TO PROVIDE CRISIS 

COUNSELING FOR VICTIMS OF 

HURRICANE FRAN 

WHEREAS, Hurricane Fran has had a devastating 
impact on the State of North Carolina; and, 

WHEREAS, the American Red Cross is able to 
provide qualified psychologists and social workers licensed 
or certified outside the State of North Carolina to assist 
victims of Hurricane Fran, and disaster relief workers, with 
crisis counseling; and, 



requirements. 

NOW, THEREFORE, pursuant to the authority 
vested in me as Governor by the Constitution and laws of 
this State, IT IS ORDERED: 

Section h Psychologists licensed outside the State 
of North Carolina provided by the American Red Cross for 
the provision of crisis counseling to North Carolina victims 
of Hurricane Fran, including disaster relief workers, shall 
be permitted to engage in the practice of psychology in this 
State, for the limited purposes expressed herein and on a 
voluntary basis only, for the duration of this Executive 
Order. 

Section Z Psychologists subject to this Executive 
Order shall be exempt from the licensure requirements of 
the North Carolina Psychology Practice Act (North Carolina 
General Statutes Chapter 90, Article 18 A) and any related 
Administrative Rules within the North Carolina Administra- 
tive Code. 

Section 3. Social workers Ucensed outside the State 
of North Carolina provided by the American Red Cross for 
the provision of crisis counseling to North Carolina victims 
of Hurricane Fran, including disaster relief workers, shall 
be jjermitted to provide crisis intervention, problem manage- 
ment, case management, and general counseling, for the 
limited purposes expressed herein and on a voluntary basis 
only, for the duration of this Executive Order. 

Section 4^ Social workers subject to this Executive 
Order shall be exempt from the certification requirements of 
the North Carolina Social Worker Certification Act (North 
Carolina General Statutes Chapter 90B) and any related 
Administrative Rules within the North Carolina Administra- 
tive Code. 

This Executive Order shall be effective immediately 
and shall remain in effect for thirty days. 

Done in the Capital City of Raleigh, North Caro- 
lina, this 12th day of September, 1996. 



WHEREAS, the provision of these psychologists 
and social workers would be of great value to those in need 
of such services; and, 

WHEREAS, the North Carolina General Statutes 
and the North Carolina Administrative Code impose certain 
licensure requirements on out of state psychologists and 
certification requirements on social workers; and, 

WHEREAS, to gain the full benefit of services to 
be provided, there is a need to temporarily suspend these 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1103 



IN ADDITION 



This Section contains public notices that are required to be published in the Register or have been approved by the 
Codifier of Rules for publication. 



STATE OF NORTH CAROLINA 

COUNTY OF WAKE 

IN THE MATTER OF: 
The Denial of the Income Tax Refund 
for the taxable year 1992 by the 
Secretary of Revenue against 
William D. and Margaret Brewer 



BEFORE THE 

TAX REVIEW BOARD 



ADMEVISTRATTVE 
DECISION NUMBER: 317 



THIS MATTER was heard before the Tax Review Board on April 23. 1996 in the City of Raleigh, Wake County, 
North Carolina, in the office of the State Treasurer. It involved the petition for administrative review filed by William D. 
and Margaret Brewer (hereinafter "Taxpayers") from the Final Decision of Michael A. Hannah, Assistant Secretary for Legal 
and Administrative Services (hereinafter "Assistant Secretary") entered on May 2, 1995 denying an individual income tax 
refund for the taxable year 1992. 

Chairman Harlan E. Boyles, State Treasurer presided over the hearing with Hugh A. Wells, Chairman, Utilities 
Commission and duly appointed member, Noel L. Allen, Attorney at Law participating. 

The Taxpayer was represented at the hearing by Ashley C. Morris, Jr., and Michael H. Burton of Deloitte & 
Touche, LLP; Marilyn R. Mudge, Assistant Attorney General, appeared on behalf of the Department of Revenue. 

After the hearing, the Board took the matter under advisement pursuant to G.S. §105-241. 2(bl). On May 30, 1996, 
a post-hearing brief was filed on behalf of the Secretary of Revenue and a response letter was filed upon behalf of the 
Taxpayer. On July 23, 1996, the Board reviewed the petition, brief, response letter, and the Assistant Secretary's decision. 

The scope of administrative review for petitions filed with the Tax Review Board is governed by G.S. §105- 
241.2(b2). G.S. § 105-241. 2(b2) states in pertinent part: 

(hi)... the Board shall confirm, modify, reverse, reduce 
or increase the assessment or decision of the Secretary. 

AND IT APPEARING TO THE TAX REVIEW BOARD, after review of the petition, brief, response letter, record 
filed in this matter and final decision, that the findings of fact made by the Assistant Secretary were fully supported by 
competent evidence in the record, that the conclusions of law made by the Assistant Secretary were fully supported by the 
fmdings of fact, and that the decision of the Assistant Secretary was fully supported by the conclusions of law; 



IT IS THEREFORE ORDERED, that the Final Decision of the Assistant Secretary is CONFIRMED in eveiy 



respect. 



Entered this the 3rd day of September, 1996. 



TAX REVIEW BOARD 



Harlan E. Boyles, Chairman 
State Treasurer 



Hugh A. Wells 

Chairman Utilities Commission 



Noel L. Allen, member 



1104 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



IN ADDITION 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



BEFORE THE 

TAX REVIEW BOARD 



IN THE MATTER OF: 
The Proposed Assessment of 
additional Individual Income 
Tax for the taxable year 1988 
against Candyce E. Newsome 



ADMINISTRATrVE 
DECISION NUMBER: 



318 



THIS MATTER was heard before the Tax Review Board (hereinafter "Board") on July 23, 1996, in the office of 
the State Treasurer in the City of Raleigh, Wake County, North Carolina. It involves a Petition for administrative review 
filed by Candyce E. Newsome (hereinafter "Taxpayer") from the Final Decision of Michael A. Hannah, Assistant Secretary 
for Legal and Administrative Services for the Department of Revenue (hereinafter "Assistant Secretary") entered on May 
16, 1995, sustaining a proposed assessment of additional individual income tax for the taxable year 1988. 

Chairman Harlan E. Boyles, State Treasurer presided over the hearing with ex officio member, Hugh A. Wells, 
Chairman, Utilities Commission and duly appointed member, Noel L. Allen, Attorney at Law. 

The Taxpayer did not appear at the hearing; Marilyn R. Mudge, Associate Attorney General, appeared on behalf 
of the Department of Revenue. Pursuant to G.S. §105-241. 2(bl), the Tax Review Board conducted the hearing upon review 
of the petition, documents filed by the Taxpayer and the records transmitted by the Secretary of Revenue. 

The scope of administrative review for petitions filed with the Tax Review Board is governed by G.S. §105- 
241.2(b2). After conducting a hearing, G.S. §105-241.2(b2) states in pertinent part: 

(b2)... the Board shall confirm, modify, reverse, reduce, 
or increase the assessment or decision of the Secretary. 

AND IT APPEARING TO THE BOARD: after review of the petition, the documents filed by the Taxpayer and 
the record in this matter, that the findings of fact made by the Assistant Secretary were fully supported by competent 
evidence in the record, that the conclusions of law made by the Assistant Secretary were fully supported by the findings of 
fact, and that the decision by the Assistant Secretary was fully supported by the conclusions of law; 



IT IS THEREFORE ORDERED that the Final Decision of the Assistant Secretary is CONFIRMED in every 



respect. 



Entered this the 3rd day of September, 1996. 



TAX REVIEW BOARD 



Harlan E. Boyles, Chairman 
State Treasurer 



Hugh A. Wells 

Chairman Utilities Commission 



Noel L. Allen, member 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1105 



IN ADDITION 



STATE OF NORTH CAROLINA 

cou>rrY OF wake 



BEFORE THE 

TAX REVIEW BOARD 



IN THE MATTER OF: 

The Proposed Assessment of 

additional sales and use tax 

for the period beginning October 1, 

1990 and ending September 30, 1993 

against Phoenix Ski Corporation 



ADNnNISTRATTVE 
DECISION NUMBER: 



319 



THIS MATTER was heard before the Tax Review Board (hereinafter "Board") on July 23, 1996, in the office of 
the State Treasurer in the City of Raleigh, Wake County, North Carolina. It involved a Petition for administrative review 
filed by Phoenix Ski Corporation (liereinafter "Taxpayer") from the Final Decision of Michael A. Hannah, Assistant 
Secretary for Legal and Administrative Services for the Department of Revenue (liereinafter "Assistant Secretary") entered 
on September 16, 1994 sustaining a proposed assessment of additional sales and use tax for the period beginning October 
1, 1990 and ending September 30, 1993. 

Chairman Harlan E. Boyles, State Treasurer presided over the hearing with ex officio member, Hugh A. Wells, 
Chairman, Utilities Commission and duly appointed member, Noel L. Allen. Attorney at Law. 

The Taxpayer did not appear at the hearing; George W. Boylan, Special Deputy Attorney General, appeared on 
behalf of the Department of Revenue. Pursuant to G.S. §105-241. 2(bl), the Tax Review Board conducted the hearing upon 
review of the petition, memorandum and brief filed, the record transmitted by the Secretary of Revenue and the Assistant 
Secretary's decision. 

The scope of administrative review for petitions filed with the Tax Review Board is governed by G.S. §105- 
241.2(b2). After conducting a hearing, G.S. §105-241. 2(b2j states in pertinent part: 

fb2)... the Board shall confirm, modify, reverse, reduce, 
or increase the assessment or decision of the Secretary. 

AND IT APPEARING TO THE BOARD: after review of the petition, the memorandum and brief filed, the record 
in this matter and final decision, that the findings of fact made by the Assistant Secretary were fully supported by competent 
evidence in the record, that the conclusions of law made by the Assistant Secretary were fully supported by the findings of 
fact, and that the decision by the Assistant Secretary was fully supported by the conclusions of law; 



IT IS THEREFORE ORDERED that the Final Decision of the Assistant Secretary is CONFIRMED in every 



respect. 



Entered this the 3rd day of September, 1996. 



TAX REVIEW BOARD 



Harlan E. Boyles, Chairman 
State Treasurer 

Hugh A. Wells 

Chairman Utilities Commission 



Noel L. Allen, member 



1106 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



RULE-MAKING PROCEEDINGS 



A Notice of Rule-making Proceedings is a statement of subject matter of the agency's proposed rule making. The agency 
must publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of 
a rule. Publication of a temporary rule serves as a Notice of Rule-making Proceedings and can be found in the Register 
under the section heading of Temporary Rules. A Rule-making Agenda published by an agency serves as Rule-making 
Proceedings and can be found in the Register under the section heading of Rule-making Agendas. Statutory reference: 
G.S. 150B-21.2. 



TITLE 2 - DEPARTMENT OF 
AGRICULTURE 

CHAPTER 43 - MARKETS 

A Jotice of Rule-making Proceedings is hereby given by 
L 1 the North Carolina Board of Agriculture - State Market- 
ing Authority in accordance with G.S. 1503-21. 2. The 
agency shall subsequently publish in the Register the text of 
the rule(s) it proposes to adopt as a result of this notice of 
rule-making proceedings and any comments received on this 
notice. 

Citation to Existing Rules Affected by this Rule-Making: 

2 NCAC 43 F; 43 H; 43L .0200, .0400 - Other rules may be 
proposed in the course of the rule-making process. 

Authority for the rule-making: G.S. 106-22; 106-185; 
106-186; 106-187; 106-188; 106-189; 106-189.1; 106- 
189.2; 106-195; 106-197; 106-245.15; 106-245.16; 106- 
245.18; 106-245.19; 106-245.21; 106-245.22; 106-530 

Statement of the Subject Matter: 

2 NCAC 43 F - Standards for receptacles; labeling. These 

rules establish labeling requirements for closed containers of 

apples and peaches. Proposed change would eliminate the 

requirement for showing net weight in both pounds and 

ounces. 

2 NCAC 43 H - Marketing of shell eggs. These rules 

establish standards for the labeling and sale of shell eggs. 

Proposed change would provide for sale of fertile eggs and 

labeling of organically-produced eggs and free-range hen 

eggs. 

2 NCAC 43L .0200 - Charlotte Regional Farmers Market; 

gate fees. These rules establish fees for sellers at the 

farmers market. Proposed change would increase certain 

fees. 

2 NCAC 43L .0400 - Western North Carolina Farmers 

Market; retail buildings; gate fees; farmers and truckers 

shed. These rules establish fees for rental of space at the 

Western North Carolina Farmers Market. Proposed change 

would increase rental rates. 

Reason for Proposed Action: 

2 NCAC 43 F - To make the rules consistent with the 

requirements of The Federal Fair Packaging and Labeling 

Act. 

2 NCAC 43H - Current rules do not permit the sale of 



fertile eggs or the labeling of eggs as organically produced 

or free-range. 

2 NCAC 43 L .0200 - To provide additional revenues to 

offset operating expenses. 

2 NCAC 43L .0400 - To provide additional revenues to 

offset operating costs. 

Comment Procedures: A public hearing on the rule- 
making proceeding will be held at 10:00 a. m. , November 
13, 1996, at the James B. Hunt, Jr. Horse Complex at the 
North Carolina State Fairgrounds. Interested persons may 
present their comments either orally or in writing at the 
public hearing. Written comments may also be submitted to 
David S. McLeod, Secretary of the North Carolina Board of 
Agriculture, P.O. Box 27647, Raleigh, NC 27611 through 
December 16, 1996. 

****************** 

CHAPTER 52 - VETERINARY DIVISION 

A Jotice of Rule-making Proceedings is hereby given by 
J. V the North Carolina Board of Agriculture in accordance 
with G.S. 150B-21.2. The agency shall subsequently publish 
in the Register the text of the rule(s) it proposes to adopt as 
a result of this notice of rule-making proceedings and any 
comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

2 NCAC52B .0200, .0300; 52C .0700 - Other rules may 
be proposed in the course of the rule-making process. 

Authority for the rule-making: G.S. 106-22; 106-307.4; 
106-307.5; 106-316.1; 106-317; 106-318; 106-361; 106- 
389; 106-390; 106-396; 106-400; 106-405.17; 106-539; 
106-540; 106-543 

Statement of the Subject Matter: 

2 NCAC 52B .0200; 52C .0700 - Importation requirements; 
wild animals. These rules set forth various requirements for 
importation of animals into North Carolina in order to 
prevent the spread of disease. Proposed change would make 
technical changes for clarification and would add new 
requirements for cervidae (deer, elk, moose, etc.). 
2 NCAC 52B .0300 - Brucellosis; calfhood vaccination. 
These rules set forth requirements for vaccination of calves 
for brucellosis. Proposed change would change standards 
for approved vaccine. 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1107 



RULE-MAKING PROCEEDINGS 



Reason for Proposed Action: 

2 NCAC 52B .0200; 52C .0700 - To clarify requirements 

for importation of wild animals generally and to adopt new 

requirements to prevent the spread of disease from cervidae. 

2 NCAC 52B .0300 - To make North Carolina rules 

consistent with federal rules and to make other technical 

changes. 

Comment Procedures: A public hearing on the rule- 
making proceeding will be held at 10:00 a.m., November 
13, 1996, at the James B. Hunt, Jr. Horse Complex at the 
North Carolina State Fairgrounds. Interested persons may 
present their comments either orally or in writing at the 
public hearing. Written comments may also be submitted to 
David S. McLeod, Secretary of the North Carolina Board of 
Agriculture, P.O. Box 27647, Raleigh, NC 27611 through 
December 16, 1996. 



TITLE 10 - DEPARTMENT OF HUMAN 
RESOURCES 

CHAPTER 3 - FACILITY SERVICES 

A Jotice of Rule-making Proceedings is hereby given by 
1 y the North Carolina Child Day Care Commission in 
accordance with G.S. 150B-21.2. The agency shall subse- 
quently publish in the Resi.'iter the text of the rule(s) it 
proposes to adopt as a result of this notice of rule-making 
proceedings and any comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

10 NCAC 3U .0705, .1717 



A Jotice of Rule-making Proceedings is hereby given by 
ly the Division of Medical Assistance in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in 
the Register the text of the rule(s) it proposes to adopt as a 
result of this notice of rule-making proceedings and any 
comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

10 NCAC 26H .0101. .0102 

Authority for the rule-making: G.S. 108A-25(b); 108A- 
54; 108A-55; S.L 1985, c. 479, s.86; 42 CFR 447, Subpart 
C; 29 CFR 1910, Subpart Z; S.L. 1991, c.689, s.95 

Statement of the Subject Matter: Allows nursing facilities 
to record depreciation and interest related to direct patient 
care equipment in the annual cost report as direct care 
costs. The primary purpose of Direct Patient Care Equip- 
ment is to enhance the quality, efficiency, or safety of the 
work of direct patient care personnel. 

Reason for Proposed Action: The objective of this amend- 
ment is to allow nursing facility providers to procure 
equipment which uses advanced technology to enhance the 
efficiency, qualify, or safety of the work of direct patient 
care personnel. 

Comment Procedures: Written comments concerning this 
rule-making action must be submitted by December 16, 1996 
to Portia Rochelle, Rule-making Coordinator, Division of 
Medical Assistance, 1985 Umstead Drive, Raleigh, NC 
27603. 



Authority for the rule-making: 

168.3 



G.S. 110-91(8); 143B- 



Statement of the Subject Matter: Training requirements 
for child day care administrators , child day care teachers, 
and child day care aides. 

Reason for Proposed Action: To amend the rules to 
recognize the National Safety Council and other bodies as 
approved to provide CPR training for child day care 
providers. 



TITLE 12 - DEPARTMENT OF JUSTICE 

CHAPTER 7 - PRIVATE PROTECTIVE 
SERVICES 

A Jotice of Rule-making Proceedings is hereby given by 
1 y the Private Protective Services Board in accordance 
with G.S. 150B-21.2. The agency shall subsequently publish 
in the Regb^er the text of the rule(s) it proposes to adopt as 
a result of this notice of rule-making proceedings and any 
comments received on this notice. 



Comment Procedures: Questions or written comments 
regarding this matter may be directed to Nancy Guy, APA 
Coordinator, Division of Child Development, 319 
Chapanoke Road, P.O. Box 29553, Raleigh, NC 27626- 
0553. (919) 662-4543. 

CHAPTER 26 - DIVISION OF 
MEDICAL ASSISTANCE 



Citation to Existing Rules Affected by this Rule-Making: 

12 NCAC 7D .0204(c), .1106(a) 

Authority for the rule-making: G.S. 74C-5 

Statement of the Subject Matter: Rule .0204 - The rule 
currently sTates tlujt tlie Board may for good cause consider 
any experience claimed by an applicant even if the experi- 
ence claimed was gained while the applicant was not in 
posses.sion of a valid license, registration, or permit. Rule 
.1106 - Tfie rule currently states that the Board will consider 



1108 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



RULE-MAKING PROCEEDINGS 



any practical experience gained within 10 years of the 
application date. 

Reason for Proposed Action: Rule .0204 - The Board 
wishes to amend the rule to allow consideration of legally 
gained experience only. Rule . 1106 - As currently written, 
the rule does not specify that the Board will consider only 
practical experience that is legally gained. Therefore, an 
applicant may ask the Board to consider experience that was 
not legally gained. 

Comment Procedures: Written comments concerning this 
rule-making activity may be submitted within sixty days of 
this publication to W. A. Haggard, III, Administrator, N.C. 
Private Protective Services Board, 3320 Old Gamer Road, 
Raleigh, NC 27626. 



General Assembly transferred regulation of District Confine- 
ment Facility Personnel to the N. C. Sheriff's Education and 
Training Standards Commission, thus necessitating proposed 
rule changes. Finally, recent technological improvements in 
Speed Measuring Instruments (Radar, TDS, Laser) has 
resulted in a pressing need to amend the Commission 's SMI 
rules. 

Comment Procedures: Any person interested in this rule- 
making proceeding may present oral or written comments 
relevant to the above-stated subject matter for a period of 60 
days ending on December 16, 1996. Written comments 
should be directed to Scott Perry at the Criminal Justice 
Standards Division which is located in Room 150, Court of 
Appeals Building, P.O. Drawer 149, Raleigh, North 
Carolina 27602. 



CHAPTER 9 - CRIMINAL JUSTICE 
EDUCATION ANfD TRAINING STANDARDS 

A Jotice of Rule-making Proceedings is hereby given by 
1 1 the North Carolina Criminal Justice Education and 
Training Standards Commission in accordance with GS. 
150B-21.2. The agency shall subsequently publish in the 
Register the text of the rule(s) it proposes to adopt as a 
result of this notice of rule-making proceedings and any 
comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

12 NCAC9A .0103; 9B .0102, .0111, .0206, .0224, .0225, 
.0409; 9C .0304, .0307, .309, .0601 - 0606 



TITLE 15A - DEPARTMENT OF ENVIRONMENT, 
HEALTH, AND NATURAL RESOURCES 

CHAPTER 10 - WILDLIFE RESOURCES AND 
WATER SAFETY 

A Jotice of Rule-making Proceedings is hereby given by 
1 V the North Carolina Wildlife Commission in accordance 
with G. S. 150B-21. 2. The agency shall subsequently publish 
in the Register the text of the rule(s) it proposes to adopt as 
a result of this notice of rule-making proceedings and any 
comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC 1 OF .0327 



Authority for the rule-making: 

6; 17C-10; 153A-217 



G.S. 8-50.2; 17C-2; 17C- Authority for the rule-making: GS. 75A-3; 75A-15 



Statement of the Subject Matter: The subject matter of 
the proposed rule-making proceeding includes: amending 
the definition of Local Confinement Personnel; adopting a 
Mandatory Background Investigation Form for criminal 
justice officers; establishing minimum firearms training 
requirements for law enforcement officers; amending the 
minimum instructional hours in three topical areas in the 
Basic Training Course for Correctional Officers; and, 
rewriting the Speed Measuring In.strument (Radar, TDS, 
etc.) rules to facilitate the addition of new S.M.I, equipment 
(for example, the General Assembly's approval of Laser 
technology for speed measurement) on the Commission 's list 
of approved Speed Measuring Instruments. 

Reason for Proposed Action: The North Carolina Criminal 
Justice Education and Training Standards Commission has 
authorized rule-making authority to amend several of its 
administrative rules in order to better define the minimum 
employment and training standards that regulate the criminal 
justice officer profession in the State. Additionally, the 



Statement of the Subject Matter: Proposed No Wake 
Zone on Lake Tillery, Montgomery County 

Reason for Proposed Action: To regulate boat speed in 
congested area. 

Comment Procedures: The record will be open for receipt 
of written comments from 10/15/96 - 12/16/96. Such written 
comments must be delivered or mailed to the North Carolina 
Wildlife Resources Commission , 512 N. Salisbury Street, 
Raleigh, NC 27604-1 188. 



TITLE 21 - OCCUPATIONAL LICENSING 
BOARDS 

CHAPTER 36 - BOARD OF NURSING 

A Jotice of Rule-making Proceedings is hereby given by 
J. V the North Carolina Board of Nursing in accordance 
with G.S. 150B-21.2. The agency .shall subsequently publish 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1109 



RULE-MAKING PROCEEDINGS 



in the Reeisrer the text of the rule(s) it proposes to adopt as 
a result of this notice of rule-making proceedings and any 
comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

21 NC AC 36 .0320 

Authority for the rule-making: G.S. 90-1 71. 23(b); 90- 
171.38 

Statement of the Subject Matter: Dismissal of students 
from nursing programs who present behavior which conflias 
with scfety essential to nursing practice; or present physical 
and emotional health problems which do not respond to 
treatment or counseling within a reasonable period of time 
and which conflict with safety essential to nursing practice. 



Reason for Proposed Action: These rules are proposed to 
be amended in order to assist state agencies in the adminis- 
tration of the rules regarding the Workers' Compensation 
Leave. 

Comment Procedures: The record will open for receipt of 
written comments from October 15, 1996 through December 
16, 1996. Such written comments must be delivered or 
mailed to Ms. Patsy Smith Morgan, Administrator , State 
Personnel Commission, 116 West Jones Street, Raleigh, NC 
27603. 



Reason for Proposed Action: 21 NCAC 36.0320(d) was 
revised effective January, 1996. The provision which 
allowed for immediate dismissal of nursing students who 
present behavior which conflias with safety essential to 
nursing practice was unintentionally omitted. The proposed 
action is needed to correct the omission. 

Comment Procedures: Convnents regarding this notice 
should be directed to: Jean H. Stanley, APA Coordinator, 
North Carolina Board of Nursing, P. O. Box 2129, Raleigh, 
NC 27602-2129. Comments must be received in the Board 
of Nursing Office by 4:30 p.m. on December 16, 1996. 



TITLE 25 - DEPARTMENT OF STATE 
PERSONNEL 

CHAPTER 1 - OFFICE OF STATE 
PERSON7VEL 

A Jotice of Rule-making Proceedings is hereby given by 
J. y the North Carolina State Personnel Commission in 
accordance with G.S. 150B-21.2. The agency shall subse- 
quently publish in the Regi.^ter the text of the rule(s) it 
proposes to adopt as a result of this notice of rule-making 
proceedings and any comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

25 NCAC IE .0705. .0707, .0709 

Authority for the rule-making: G.S. 126-4 

Statement of the Subject Matter: The purpose of the 
Workers' Compensation rules is to ensure that employees 
experiencing work related injuries and illnesses are provided 
compensation in accordance with the Workers' Compensa- 
tion Act and to provide consistent application of those rules 
and regulations. Further, the purpose is to provide swift 
and certain remedy to the injured employee as well as to 
ensure a limited and determinate liabilitx to the State. 



1110 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



PROPOSED RULES 



This Section contains the text of proposed rules. At least 60 days prior to the publication of text, the agency published 
a Notice of Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from 
the publication date, or until the public hearing, or a later date if specified in the notice by the agency. The required 
comment period is 60 days for a rule that has a substantial economic impact of at least five million dollars ($5,000,000). 
Statutory reference: G.S. 150B-21.2. 



TITLE 1 - DEPARTMENT OF 
ADMINISTRATION 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the Department of Administration 
intends to amend rules cited as 1 NCAC 39 .0101 and . 0201 
with changes from the proposed text noticed in the Register , 
Volume 10, Issue 16A, pages 1672 - 1674. 

Proposed Effective Date: January 1, 1997 

Reason for Proposed Action: Makes technical and other 
changes in response to comments received during initial 
comment period. 

Comment Procedures: Written comments may be submitted 
to R. Glen Peterson, General Counsel, Department of 
Administration, 116 West Jones Street, Raleigh, NC 27603- 
8003. These written comments must be received no later 
than 5:00 p.m. , November 15, 1996. 

Editor's Note: An agency may not adopt a rule that differs 
substantially from the text of a proposed rule published in 
the Resister. unless the agency publishes the text of the 
proposed different rule and accepts comments on the new 
text. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. 

CHAPTER 39 - DEPARTMENT OF 
ADMINISTRATION'S MINIMUM CRITERIA 

SECTION .0100 - PURPOSE 

.0101 PURPOSE 

The purpose of these minimum criteria is to establish 
threshold levels for minor operations or small routine 
faciUty projects in this Rule which no filing of environmen- 
tal documents under G.S. 113A shall be required. The 
primary emphases of these minimum criteria are to: 

(1) insure that protection is provided to the environ- 
ment in the State Government Center and at other 
properties under the control of the Department of 
Administration throughout the state; 

(2) insure that environmental impacts are considered 
prior to approving activities on the state's sensi- 
tive areas, defined as those which are delineated 
or protected under one or more of the following: 
(a) Wetlands by the U.S. Army Corps of 



Engineers under 33 CITl 328.3 and 40 
CFR 230.3; 

(b) Nadonal Historic Preservation and Cono e r 
vation Act of 1966. as amended and Na- 
tional Executive Order 11593 and State 
Executive Order 16 administered by the 
North Carolina Department of Cultural 
Resources; 

(c) Prime Agricultural and Forest Lands identi- 
fied under P.L. 97-98 and State Executive 
Order 96; 

-(d^ National Natural Landmarks as designated 

under the Historic Sito Act at 16 USC 4 61; 

{p) Int e rnational — Bio s ph e rio R ese r < ' e o d e aig 

nat e d by th e Unit e d Nations und e r th e 
UNESCO Act, P.L. 575 2. statutor , - 712; 

(d) ff) State Park Lands designated under G.S. 
113-44.9; 

(e) fg^ State Game Lands administered under 
G.S. 113-264 and 306(d); 

(f) (h) State Forest Lands administered under 
G.S. 113-22 and 29; 

(g) (t) State Nature Preserves and Dedicated 
Natural Areas administered under G.S. 
113A-164.1; 

(h) (}) Primary and Secondary Nurseries desig- 
nated in accordance with und e r 15A NCAC 
3R .0003; .0003-.0005 and ISA NCAC 
IOC .0503. and Critical Habitat Areas 
designated in accordance with 15A NCAC 
31 .0001 and 15A NCAC 101 .0001(a)(5); 

£i} fk) State High Quality Outstanding Ro 
source Waters designated in accordance 
with under 15A NCAC 2B -J^U^ .0201(d); 
this includes waters classified as WS-1. 
WS-II. SA and ORW (Outstanding Re- 
source Waters); by — the — Environmental 
Manag e m e nt Commioaion; 

(j) (4) State Natural and Scenic Rivers desig- 
nated under G.S. 113A-30; 

(k) fffi) North Carolina Coastal Reserves desig- 
nated under G.S. 113A-129.1; 

(1) (ft) State Lakes administered under G.S. 
146-3; and 
(m) (e) Lands which contain animal or plant 
species protected by the Federal Threatened 
and Endangered Species Act (administered 
by the U.S. Fish and Wildlife Service), 
State Endangered and Threatened Wildlife 
and Wildlife Species of Special Concern 



11:14 



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October 15, 1996 



nil 



PROPOSED RULES 



Act (G.S. 113-331 administered by the 
North Carolina Wildlife Resources Com- 
mission), State Plant Protection and Con- 
servation Act (G.S. 106-202.12 adminis- 
tered by the North Carolina Department of 
Agriculture); 
All the laws or rules in this Rule are incorporated 
by reference and include subsequent amendments. 
Copies are available at the Department of Envi- 
ronment, Health, and Natural Resources; and 
(3) permit the implementation of the routine opera- 
tions, maintenance, repair, or construction tasks 
which the state is required to undertake without 
undue delay or expense. 

Authority G.S. 113A-11. 

SECTION .0200 - NON-MAJOR ACTIVITIES 

.0201 NON-MAJOR ACTIVITIES 

The following list of criteria shall be considered as 
descriptive of routine operations, small construction pro- 
jects, and routine maintenance projects which do not require 
the filing of an Environmental Impact Statement, Environ- 
mental Assessment, or a Finding of No Significant Impact: 

(1) Any action which involves relocation of staff 
members into a site using existing State buildings 
or leased buildings for which the building occu- 
pancy classification is not changed. 

(2) Routine disposal operations of haMrdous chemi- 
cals, asbestos, or other environmentally sensitive 
operations for which a written procedure has been 
established, reviewed by appropriate authority, 
and determined to be in keeping with state or 
federal law. 

(3) Routine repairs and housekeeping projects which 
maintain a facility's original condition and physi- 
cal features, including re-roofing and minor 
alterations where in-kind materials and techniques 
are used. This also encompasses structures 50 
years of age and older and for which no separate 
law, rule, or regulation dictates a formal review 
and approval process. 

(4) Demolition of or additions, rehabilitation and/or 
renovations to a structure not listed in the Na- 
tional Register of Historic Places or less than 50 
years of age. 

(5) Purchase by the Department of Administration for 
Department of Administration's use of real estate 
for which the use of the real estate does not vary 
from its intended purpose or function at the time 
of purchase or is consistent with local land use 
plans. 

(6) The use of chemicals for boiler feedwater treat- 
ment, cooling tower water treatment, pesticides, 
herbicides, cleaning solvents, and other chemical 
products which may be considered environmen- 



tally sensitive, provided the materials are stored 
and utilized in keeping with the applicable Mate- 
rial Safety Data Sheet (MSDS). 

(7) TTie handling of asbestos incident to a repair, 
maintenance, or minor construction project pro- 
vided that the asbestos material is removed, 
stored, disposed of, and handled in accordance 
with published Department of Administration's 
procedures for processing asbestos. 

(8) New construction involving all of the following: 

(a) A footprint of less L e ss than 10,000 square 
feet; 

(b) Loss than two hundred thousand dollars 

($300,000) oo fl t; 

(b) (e) LooD than on e acr e of pr e viouoly undio 
turbod ground unlo99 the site i s A location 
that is not a National Register arohaoologi 
eal Archaeological site; and 

(c) (4) Tlie use of the structure does not 
involve the handling and/or the storage 
of hazardous materials. 

(9) Routine grounds maintenance and landscaping. 

(10) Routine repair of existing parking lots. 

(11) Installation of outdoor sculpture(s) or exhibits. 

(12) Granting of leases, easements, or permits autho- 
rizing use of public land for any of the following: 

(a) Installation of aerial and sub-aqueous pipes 
or pipelines for the transportation of pota- 
ble water, and any cable line or line for the 
transmission of electrical energy, not re- 
quiring a certificate of environmental com- 
patibility and public convenience from the 
North Carolina Utilities Commission, 
telephone or telegraph messages, and radio 
and television communications. 

(b) Communication towers not located in sensi- 
tive areas as defined in Rule .0101(2) of 
this Chapter. 

(c) Construction of a road in accordance with 
accepted design practices and in compliance 
with North Carolina Department of Trans- 
portation standards and specifications, 
involving less than 25 cumulative acres of 
ground surface not located in sensitive 
areas. 

(d) Filling below the mean high water mark 
when such filling has been approved by the 
U.S. Army Corps of Engineers or the 
North Carolina Division of Coastal Man- 
agement. 

(e) Sewer line installations not exceeding the 
minimum criteria of the permitting agency 
and not located in sensitive areas. 

(f) Ground water withdrawals not exceeding 
the minimum criteria of the permitting 
agency and not located in sensitive areas. 

(g) Where the proposed private use of the 



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October 15, 1996 



11:14 



PROPOSED RULES 



public land does not exceed the minimum 
criteria established by the agency recom- 
mending the lease, easement, or permit. 

(h) Piers and boat docics on aM State Lakes 
when constructed in accordance with 15A 
NCAC 12C .0300. 

(i) Structures or piers and boat docks involv- 
ing less than 1 1 slips. 

()) Granting of voluntary easements for struc- 
tures existing as of October t^ 1995, in 
accordance with G.S. 146-12rb) . 

(13) Exchange or purchase of land where no agree- 
ment exists for the private land to be developed 
for use in any way that results in a change in the 
natural cover or topography prior to the exchange 
or purchase. 

(14) Timber harvest in accordance with the National 
Forest Service or the North Carolina Division of 
Forest Resources Management's Plans and recog- 
nized best management practices. 

Authority G.S. 113A-11. 



TITLE 4 - DEPARTMENT OF COMMERCE 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the Department of Commerce, Division 
of Community Assistance intends to adopt 4 NCAC 19L 
.0706 - .0708, .1801 - 1805, and amend rules cited as 4 
NCAC 19L .0401, .0403 - .0404. .0407, .0501 - .0502. 
.0505, .0802, .0901, .0906 - .0907, .0911, .1002, .1004, 
. 1009, .1011, . 1301 - . 1303, .1701 - .1703. Notice of Rule- 
making Proceedings was published in the Register on August 
1, 1996. 

Proposed Effective Date: January 1. 1997 

A Public Hearing will be conducted at 1:00 p.m. on 
November 4. 1996 at 1307 Glenwood Avenue, Suite 250. 
Raleigh, NC 27605. 

Reason for Proposed Action: TJie proposed action is 
necessary to enable the Division of Community Assistance to 
implement the Small Cities Community Development Block 
Grant Program in accordance with U.S. Department of 
Housing and Urban Development (HUD) regulations, the 
HUD-approved CDBG Action Plan for 1996, and the CDBG 
Block Grant Plan approved by the General Assembly in July 
1996, and the CDBG Loan Guarantee program authorized 
by the General Assembly in House Bill 361 , as amended in 
1996. 

Comment Procedures: Oral and written comments are due 
by November 20, 1996, to William A. McNeil, Division of 
Community Assistance. P.O. Box 12600, Raleigh, NC 
27605. (919) 733-2850. 



Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. The.se Rules do 
not have a substantial economic impact of at least five 
million dollars ($5,000,000) in a 12-month period. 

CHAPTER 19 - DIVISION OF COMMUNITY 
ASSISTANCE 

SUBCHAPTER 19L - NORTH CAROLINA 

COMMUNITY DEVELOPMENT BLOCK 

GRANT PROGRAM 

SECTION .0400 - DISTRIBUTION OF FUNDS 

.0401 GENERAL 

(a) The Division shall designate specific due dates or 
open periods of time for submission of grant applications 
under each category, category oxcopt for Housing Develop 
m e nt and Urgent Nood o . — Housing Dovolopm e nt and Urgent 
Needs applications may be submitted at any time , but oth e r 
grant application submission dates will bo announced by the 
Division . 

(b) In cases where the Division makes a procedural error 
in the application selection process that, when corrected, 
would result in awarding a score sufficient to warrant a 
grant award, the Division may compensate that applicant at 
the earliest time sufficient funds become available or with a 
grant in the next funding cycle. 

(c) Applicants can apply for funding under the grant 
categories of Community Revitalization, Housing Develop- 
ment, Entrepr e n e urial Empow e rm e nt Community Empower- 
ment, Demonstration and Urgent Needs. Applicants shall 
not apply for Contingency funding. Contingency awards 
wtH may be made to eligible applicants in Community 
Revitalization. any category. 

(d) Procedure for distribution of funds are detailed m the 
Annual CDBG Action Plan submitted to HUD. 

Authority G.S. 1438-10; 143B-431; 24 C.F.R. 570.483. 

.0403 SIZE AND USE OF GRANTS MADE TO 
RECIPIENTS 

(a) There is no minimum grant amount which applicants 
may request or be awarded. Grant awards made to any one 
recipient shall not exceed the following amount in each 
grant category: Community Revitalization: Concentrated 
Needs N ee d and Infrastructure subcategories - eight hundred 
fifty thousand dollars ($850,000) subcategory z seven 
hundred fifty thousand dollars ($750,000), Infrastructrue 
subcategory ; eight hundred fifty thousand dollars 
($850, OCX)), and Scattered Site subcategory - ftve four 
hundred thousand dollars ($500,000); ($400,000) Housing 
Development - two hundred fifty thousand dollars 
($250,000) or funds available ; Urgent Needs - six hundred 
thousand dollars ($600,000); Contingency - six hundred 
thousand dollars ($600,000); Entropronourial Community 



11:14 



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October 15, 1996 



1113 



PROPOSED RULES 



Empowerment implementation grant - ono million dollars 
($1.000,000) and Entropron e urial Empowormont planning 
grant — twonty thouoand dollaro ($20,000). seven hundred 
fifty thousand dollars ($750.000). Applicants shall not have 
a project or combination of projects under active consider- 
ation for funding which exceeds one million two hundred 
fifty thousand dollars ($1,250,000), except for Urgent Needs 
projeota projects and one demonstration project. Applicants 
in the Community Revitalization category shall choose to 
apply for either a concentrated needs award, or an infra- 
structure award, or a scattered site award, but no more than 
one from the same HUD allocation. 

(b) No local government may receive more than a total 
of one million two hundred fifty thousand dollars 
($1,250,000) in CDBG funds in the period that the state 
distributes its annual HUD allocation of CDBG funds; 
except that local governments may also receive up to six 
hundred thousand dollars ($600,000) for a project that 
addresses Urgent Needs and funds for one demonstration 
project m addition to other grants awarded during the same 
time period. 

(c) Community Revitalization basic category applicants 
may spend no mor e than 15 poro e nt a portion of their total 
grant amount to finance local option activities. Ug i2 15 
percent may be spent Local option aotivitios aro on eligible 
activities which do not need to be directly related to pro- 
posed projects except in the infrastructure ouboatogor)'. 
subcategory; however, job Alternatively, u£ to 25 percent 
may be spent on eligible activities that contribute to compre- 
hensive development of the main project area in a Concen- 
trated Needs grant. Job creation activities are not eligible 
local option aotivitioo. activities unless they are part of the 
25 percent alternative. Local option activities will not be 
competitively rated by the Division, but may be limited to 
specific eligible activities. Each local option project must 
show that: 

(1) At least fifty-one percent of the CDBG funds 
proposed for each activity will benefit low- and 
moderate-income persons, except that CDBG 
fiinds may be used for acquisition, disposition, or 
clearance of vacant units to address the national 
objective of prevention or elimination of slums or 
blight; and 

(2) CDBG funds proposed for each activity will 
address the national objective of benefiting low- 
and moderate-income persons, or aid in the 
prevention or elimination of slums or blight. 

(d) The Division may review grant requests to determine 
the reasonableness and appropriateness of all proposed 
administrative and planning costs. Notwithstanding Rule 
.0910 of this Subchapter, grantees may not increase their 
approved planning and administrative budgets without prior 
Division approval. In no case, may applicants budget and 
expend more than 18 percent of the sum of funds requested 
and program income for administrative and planning 
activities for each project, project, except that demonstration 
funds may be awarded for projects limited to planning 



activities only in which case all funds will be spent for 
planning and administration. 

(e) Applicants may spend CDBG funds in those areas in 
which the applicant has the legal authority to undertake 
project activities. 

(f) Grants to specific recipients will be provided in 
amounts commensurate with the size of the applicant's 
program. In determining appropriate grant amounts for 
each applicant, the Division may consider an applicant's 
need, proposed activities, all proposed administrative and 
planning costs, and ability to carry out the proposed activi- 
ties. 

Authority G.S. 143B-10; 143B-431; 24 C.F.R. 570.483; 42 
U.S.C. 5301. 

.0404 GRANT CATEGORY ALLOCATION 

Each program year, funds will be reserved for each grant 
category. Funds awarded to local governments will be 
reserved for each grant category in accordance with the 
Program Design Statement annual Action Plan that is the 
part of the North Carolina Consolidated Plan as approved 
annually by HUD. From time to time, the Division may set 
aside botvyoon ono and up to two percent for demonstration 
grants. The remaining funds will be distributed by the 
Division to Community Revitalization grant applications. 
applications unless otherwise specified in the annual Action 
Plan . 

Authority G.S. J43B-10; 143B-431; 42 USC 5304; 24 
C.F.R. 570.482; 24 C.F.R. 570.483. 

.0407 GENERAL APPLICATION REQUIREMENTS 

(a) Local governments shall submit applications as 
prescribed by this Rule in order to be considered for 
funding. Selection of applications for funding will be based 
primarily on information contained in the application; thus 
applications must contain sufficient information for the 
Division to rate them against the selection criteria. In 
addition, the following may be considered: information from 
any source which regards the eligibility of the applicant or 
application; the legality or feasibility of proposed activities; 
the applicant's compliance with application procedures 
specified in this Subchapter or the accuracy of the informa- 
tion presented in the application; evaluation of proposed 
projects by on-site review; and category-specific information 
described in Sections .0500, .0700, .0800, .1200, and 
.1300, .1300, and .1700 of this Subchapter. All applicants 
shall address their projects to one of the following grant 
categories: Community Revitalization (either concentrated 
needs, infrastructure or scattered site). Housing Develop- 
ment, Urgent Needs, Demonstration, or Entr e pr e n e urial 
Community Empowerment. Applicants may apply in more 
than one grant category, providing the total grant application 
and award does not exceed the maximum limits described in 
Paragraphs (a) and (h) of Rule .0403 of this Section. 
Applicants shall submit an application that describes each 



1114 



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October 15, 1996 



11:14 



PROPOSED RULES 



project in sufficient detail to be adequately rated. 

(b) Applications must be received by the Division's 
administrative offices in Raleigh before 5:00 p.m. on the 
submission date or sent by mail and postmarked on the 
submission date. 

(c) Applicants must provide citizens with adequate 
opp>ortiinity for meaningful involvement in the development 
of Community Development Block Grant applications. 
Specific citizen participation guidelines are described further 
in Rule . 1002 of this Subchapter. If the Division is aware 
of an applicant's failure to meet these citizen participation 
requirements, the Division may not rate the application. 

(d) The Division may submit all CDBG applications and 
environmental review records as required by the National 
Environmental Policy Act and the State Environmental 
Policy Act to the State Clearinghouse of the Department of 
Administration for review and comments. The Division 
may require each applicant to submit a written description 
of how the applicant proposes to address each comment 
received from the State Clearinghouse. 

(e) The applicant shall certify to the Division that it will 
comply with all applicable federal and state laws, regula- 
tions, rules and Executive Orders. Copies of these federal 
and state requirements are available for public inspection 
from the Division. 

(f) Applicants must comply with the Housing and 
Community Development Act of 1974 as amended, all 
applicable federal and state laws, regulations, rules, and 
Executive Orders. 

(g) Application requirements described in this Rule .0407 
do not apply to demonstration grants and Urgent Needs 
grants, except for Paragraphs (a), (d), (f) and (g). 

(h) For multi-family rental housing activities, the 
applicant must state in the application the standards it has 
adopted for determining affordable rents for such activities. 

(i) Applicants that receive CDBG funding for projects 
may charge the cost of application preparation to prior 
CDBG programs or to the current program provided that 
procurement procedures consistent with 24 CFR 85.36 are 
followed. No more than three thousand five hundred dollars 
($3,500) may be charged to the CDBG program for applica- 
tion preparation. 

Authority G.S. 143B-10; 143B-431; 42 U.S.C.A. 5304(a); 
24 C.F.R. 570.483. 

SECTION .0500 - COMMUNITY REVITALIZATION 
PROJECTS 

.0501 DESCRIPTION 

(a) The Community Revitalization category includes 
activities in which a majority of funds is directed towards 
improving, preserving or developing residential areas. All 
eligible CDBG activities may be undertaken for the purpose 
of community revitalization. 

(1) Applications for funding may involve single or 
multiple activities, addressing one or more needs 



in the area except for infrastructure and scattered 
site subcategories which addresses one need. 

(2) All community revitalization activities, except for 
scattered site activities, must be carried out within 
defined project areas. 

(3) Community Revitalization funds are distributed to 
eligible units of local government on a competi- 
tive basis. Community Revitalizafion projects will 
be evaluated against other Community Revitaliza- 
tion project proposals. 

(b) The Community Revitalization category includes a 
subcategory for scattered site housing activities which are 
directed towards one hundred per cent low and moderate 
income benefit or the prevention or elimination of slums or 
blight. Scattered site projects are limited to housing 
rehabilitation, acquisition, disposition, clearance, and 
relocation activities. 

(1) Scattered site activities may be carried out in any 
location throughout the applicant's jurisdiction and 
need not be carried out in an area of concentrated 
need. 

(2) Ne Up to 5 percent of the total project cost may 
be contributed from local or non-local funds are 
required or oxpooted — to bo contributed to in 
scattered site housing rehabilitation projects. 

(3) Scattered site funds are distributed to eligible units 
of local government on a competitive basis, and 
projects will be evaluated against other scattered 
site project proposals. 

(c) The Community Revitalization category includes a 
subcategory for public infrastructure projects within a 
definable project area. Projects will be evaluated against 
other infrastructure project proposals. 

Authority G.S. 143B-10; 1438-431; 42 U.S.C.A. 5301; 24 
C.F.R. 570.483. 

.0502 ELIGIBILITY REQUIREMENTS 

(a) Applications for concentrated needs subcategory funds 
must show that: 

(1) At least 51 percent of the CDBG funds proposed 
for each project will benefit low- and moder- 
ate-income persons, except that CDBG funds 
proposed for local option activities may be used 
for acquisition, disposition, or clearance of vacant 
units to address the national objective of preven- 
tion or elimination of slums or blight; and 

(2) CDBG funds proposed for each activity will meet 
a national objective as specified in HUD regula- 
tions previously incorporated by reference, except 
that funds shall not be used to meet the national 
objective of urgent need which is covered by Rule 
.0801 of this Subchapter. 

Applications that do not meet these eligibility requirements 
will not be rated or funded. In designing projects which 
meet these requirements, applicants must appropriately 
ensure that activities do not benefit moderate-income 



11:14 



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October 15, 1996 



1115 



PROPOSED RULES 



persons to the exclusion of low-income persons. 

(t) Applicants for scattered site subcategory funds must 
show that: 

(1) Rehabilitation activities of occupied and vacant 
units must benefit 100 percent low and moderate 
income persons: and 

(2) CDBG funds proposed for rehabilitation acquisi- 
tion, clearance, and disposition of vacant units 
will address the national objective of preventing 
or eliminating slums or blight. 

(c) Applicants shall have the capacity to administer a 
CDBG program. The Division may examine the following 
areas to determine capacity: 

(1) audit and monitoring findings on previously 
funded Community Development Block Grant 
programs, and the applicant's fiscal accountability 
as demonstrated in other state or federal programs 
or local government financial reports: and 

(2) the rate of expenditure of funds and accomplish- 
ments in previously funded CDBG programs. 

Applicants that show a lack of capacity will not be rated or 
funded. 

Authority G.S. 143B-10; 143B-431: 42 U.S.C.A. 5301; 24 
C.F.R. 570.483. 



and priorities armounced by the Division for the 
demonstration funds. 
Applicants that do not meet these eligibiltiy requirements 
will not be considered for funding. 

(b) Applicants shall have the capacity to administer a 
CDBG program. The Division may examine the following 
areas to determine capacity: 

(1) audit and monitoring findings on previously 
funded Community Development Block Grant 
programs, and the applicant's fiscal accountability 
as demonstrated in other state and federal pro- 
grams or local government financial reports; and 

(2) the rate of expenditure of funds and 
accomplishements in previously funded CDBG 
programs- 
Applicants that show a lack of capacity will not be consid- 
ered for funding. 

Authority G.S. 143-323; 143B-10; 42 U.S.C.A. 5301; 24 
C.F.R. 570.489. 

.0708 SELECTION CRITERIA 

Selection criteria will be announced by the Division at 
least 30 days prior to accepting applications for any demon- 
stration grant. 



.0505 SELECTION CRITERIA 

Projects will be evaluated and rated in accordance with 
the annual statement of program design Action Plan in the 
North Carolina Consolidated Plan as approved by HUD. 
Rating factors are: 

( 1 ) benefit to low and moderate income persons, 

(2) project severity of need, 

(3) project treatment of need, 

(4) appropriateness and feasibility of proposed project 
activities, and 

(5) local commitment of funds ef and community efforts. 

Authority G.S. 1438-10; 1433-431; 42 U.S.C.A. 5304(a)(1); 
24 C.F.R. 570.483. 

SECTION .0700 - DEMONSTRATION PROJECTS 

.0706 DEFINTTION 

Demonstration grants are provided to assist local govern- 
ments to develop innovative strategies for addressing 
specific community development needs and priorities. 

Authority G.S. 143-323; 1433-10; 42 U.S.C.A. 5301; 24 
C.F.R. 570.489. 

.0707 ELIGIBILITY REQUIREMENTS 

(a) Applications for Demonstration Projects must show 
that: 

(1) the proposed project meets a national objective in 
accordance with 24 CFR 570.483; and 

(2) the proposed project meets the specific purpose 



Authority G.S. 143-323; 1433-10; 42 U.S.C.A. 5301; 24 
C.F.R. 570.489. 

SECTION .0800 - URGENT NTEDS/CONTINGENCY 
PROJECTS 

.0802 ELIGIBILITY REQUIREMENTS 

Urgent Needs grant applicants must certify to all feaf 
three of the following eligibility requirements: 

( 1 ) the need addressed by the application must have 
arisen during the preceding 18-month period and 
represent an imminent threat to public health or 
safety; 

(2) the need addressed by the application must repre- 
sent a unique and unusual circumstance that does 
not occur frequently in a number of communities 
in the state; 

(3) the applicant does not have sufficient local re- 
sources, and state or federal resources are not 
available to alleviate the urgent need; need, aftd 

— f43 at least 51 percent of the CDBG funds proposed 

for the proj e ct must b e n e fit low and mod e rat e 
incom e p e rsons. 

Authority G.S. 1433-10; 1433-431; 42 U.S.C.A. 5304(b)(3); 
24 C.F.R. 570.483. 

SECTION .0900 - GRANT ADMINISTRATION 

.0901 GRANT AGREEMENT 

(a) Upon approval of the application by the Division, a 



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NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



PROPOSED RULES 



written grant agreement will be executed between the 
recipient and the Division. These Rules, the approved 
application, and any subsequent amendments to the approved 
application shall become a part of the grant agreement. 

(b) The grant agreement in its original form and all 
modifications thereto shall be kept on file in the office of the 
recipient in accordance with Rule .0911 of this Section. 

(c) The Division may condition the grant agreement until 
the recipient demonstrates compliance with all applicable 
laws and regulations. In the case of Housing Development 
and Entroproneurial Community Empowerment projects the 
grant agreement may be conditioned until legally binding 
commitments have been obtained from all participating 
entities. 

(d) Neither CDBG nor non-CDBG funds involved in a 
project may be obligated, nor may any conditioned project 
activities begin until the Division releases in writing any and 
all applicable conditions on the project. Recipients may 
incur costs prior to release of conditions with prior Division 
approval in accordance with Rule .0908 of this Section. 

Authority G.S. 143B-W; 143B-431; 24 C.F.R. 570.483. 

.0906 FINANCIAL MANAGEMENT SYSTEMS 

Recipient financial management systems shall provide for 
accurate, current and complete disclosure of the financial 
results of each grant program in accordance with fiscal 
control and reporting requirements set forth in G.S. 159, 
Article HI, the Local Government Budget and Fiscal Control 
Act. Recipients shall meet the following requirements: 

(1) All grant funds shall be expended in accordance 
with a budget ordinance or project ordinance 
adopted under G.S. 159-8 and G.S. 159-13.2 
respectively; 

(2) A recipient may deposit or invest all or part of the 
cash balance of any grant fund; however, all 
interest earned shall be returned to the Depart- 
ment in accordance with Rule .0907(c) of this 
Section; 

(3) Investment deposits shall be secured as provided 
in G.S. 159-31(b); 

(4) The recipient shall designate as its official deposi- 
tories one or more banks or trust companies in the 
State in accordance with G.S. 159-31(a); 

(5) All budgetary accounting for appropriations of 
grant fionds shall be in accordance with the proce- 
dures for incurring obligations and disbursements 
as set forth in G.S. 159-28; 

(6) Each recipient shall establish an accounting 
system in accordance with G.S. 159-26; 

(7) The recipient's finance officer, and each officer, 
employee, or agent who handles or has in his 
custody more than one hundred dollars ($100.00) 
of grant funds at any time, or who handles or has 
access to the recipient's inventories, shall be 
bonded in accordance with G.S. 159-29; 

(8) Each recipient shall maintain records that identify 



adequately the source and application of funds for 
grant-supported activities. These records shall 
contain information pertaining to federal awards 
and authorizations, obligations, unobligated 
balances, assets, liabilities, outlays, and income; 
(9) A system for procedures for procurement and 
property management shall be provided in accor- 
dance with Rule .0908 and Rule .0909 of this 
Section; 

(10) All cash receipts must be deposited with, or to the 
credit of, the finance officer. Tliis includes 
program revenues, reimbursements of travel, 
vendor payments or other items previously re- 
corded as expenditures, and all other grant monies 
from the Department; 

(11) Recipients must develop a systematic method to 
assure timely and appropriate resolution of audit 
findings and recommendations; 

(12) Recipients shall require subgrantees to adopt the 
standards set forth in this Rule; 

(13) Recipients shall comply with the Office of Man- 
agement and Budget Circular A-87, entitled Cost 
Principles for State and Local government. In 
applying OMB A-87 the term "federal agency" 
shall mean the Department; 

(14) Recipients shall record the receipt and expenditure 
of project revenues from taxes, special assess- 
ments, evies, fines, etc., in accordance with 
generally accepted accounting principles; 

(15) Subrecipients shall comply with the Office of 
Management and Budget Circular A-110, entitled 
Uniform Administrative Requirements for Grants 
and other Agreements with Institutions of Higher 
Education, Hospitals, and other Nonprofit Organi- 
zations. 

Authority G.S. 14-234; 143B-10; 1438-431; 24 C.F.R. 
570.489; 24 C.F.R. 570.496; 42 U.S.C.A. 5304(h). (d),(e). 

.0907 PROGRAM INCOME 

(a) Definition. Program Income is defined as gross 
income earned by the recipient from grant supported 
activities. Such earnings may include, but not be limited to, 
sale of property, interest received from a loan program, and 
the return of sales taxes on purchases made during the 
program. Receipts derived from the operation of a public 
work or facility, the construction of which was assisted by 
this program, do not constitute program income. Income 
generated under the Development Loan Fund program, 
including loan repavments, fees, lease payments does not 
constitute program income. 

(b) Unless the grant agreement provides otherwise, 
recipients shall have no obligation to the Department with 
respect to royalties received as a result of copyrights or 
patents produced under the grant or other agreement. 
Recipients must however, follow the procedures set forth in 
Rule .0909 PROPERTY MANAGEMENT STANDARDS. 



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PROPOSED RULES 



(c) All interest earned on grant funds prior to distribution 
shall be returned to the Department, except recipients may 
keep one hundred dollars ($100.00) per year for administra- 
tive expenses in accordance with 24 CFH 570.489(c)(2). 

(d) Recipients shall record the receipt and expenditure of 
revenues (such as taxes, special assessments^ levies, fmes, 
etc.) as a part of grant project transactions when such 
revenues are specifically earmarked for a grant project in 
accordance with the grant agreement. 

(e) Unless otherwise required, program income generated 
by a pre- 1986 grant may be retained by the recipient. 
Program income is identified by the grant year in which the 
activities which generated the program income were funded. 
Pre-1986 program income shall be added to funds commit- 
ted to a current project and used for activities approved in 
the project's application. Pre-1986 program income shall be 
expended prior to requesting additional funds from the 
Department or shall be used in future CDBG projects. 

(f) Program Income generated by grants made in 1986 or 
afterwards shall be returned to the Department except when: 

(1) the recipient shall propose at the time of applica- 
tion or at the time the program income is antici- 
pated, a use or uses for the projected program 
income, and 

(2) the Department determines that, at the time of the 
proposal, the use of the projected program income 
meets federal requirements prohibiting the state 
from recapturing the program income; or 

(3) the recipient, designated at the time of the prelim- 
inary grant award as a "severely distressed 
county" pursuant to G.S. 105-130. 40(c), or a city 
in such a county, wishes to retain the program 
income to estabUsh a local economic development 
revolving loan fund. Any activities that are 
eligible under Title I of the federal Housing and 
Community Development Act of 1974, as 
amended, and that meet at least one of the three 
national objectives of the Housing and Community 
Development Act may be undertaken. If the 
designation, pursuant to G.S. 105-130. 40(c), as a 
"severely distressed county" is removed from a 
county, projects having received at least a prelimi- 
nary grant award prior to the removal of the 
designation may continue to retain program 
income resulting from that grant as provided in 
this subsection. Provisions of 4 NCAC 19L 
.0913 apply at the time of closeout; or 

(4) the program income is generated from an Entre- 
preneurial Empowerment project, and the Depart- 
ment has approved the plan for re-use of program 
income. 

(g) Income after closeout and not subject to Rule 
.0907(e) and (f) of this Subchapter. 

(1) Except as may be otherwise provided under the 
terms of the grant agreement or any closeout 
agreement, program income of ten — thousand 
dollars ($10,000) twentv-Fi\'e thousand dollars 



($25,000) or more received annually subsequent 

to the CDBG Program closeout shall be used for 

any eligible activity pursuant to Rule .0301 of this 

Subchapter. Recipients must receive Division 

approval in writing prior to obligation of program 

income under this Paragraph to determine if the 

proposed use is plainly appropriate to meeting the 

recipient's needs and objectives. When income 

received is less than ten — thousand — dollars 

($10,000) tuentv-five thousand dollars ($25,000) 

annually, the recipient may spend the funds at the 

end of the 12 month period according to its own 

needs; and 

(2) Accurate records shall be kept on all program 

income and reported annually to the Division 

when the annual amount exceeds ten thousand 

dollar s ($10,000) twenty-Five thousand dollars 

($25,000) and to determine when the t e n thousand 

dollar s ($10,000) tuent^-Five thousand dollars 

($25,(XX3) threshold is exceeded subsequent to 

grant closeout. 

(h) Program income generated under the Development 

Loan Fund program, including loan repayments, fees, lease 

pavments shall meet all the requirements outlined in 24 CFR 

570.489(e) and the contract bet\».een the unit of local 

government and the Department of Housing and Urban 

Development. 

Authonn G.S. 143B-431; 153A-376; 160A-456; 24 C.F.R. 
570.489(e). 

.0911 RECORDKEEPING 

(a) The Secretary of the Department of Commerce, the 
Secretary of the Department of Housing and Urban Devel- 
opment, or any of their duly authorized representatives shall 
have access to all books, accounts, records, reports, files, 
and other papers or property of recipients or their 
subgrantees and contractors pertaining to funds provided 
under this Subchapter for the purpose of making surveys, 
audits, examinations, excerpts and transcripts. 

(\>) All Community Development Program records that 
are public under G.S. 132 shall be made accessible to 
interested individuals and groups during normal working 
hours, hours, and shall be maintained at all times at the 
recipient's local government office, unless the recipient is 
authorized in writing by the Division to keep the records 
elsewhere. 

(c) Financial records, supporting documents and all other 
reports and records required under this Subchapter, and all 
other records pertinent to the Community Development 
Program shall be retained by the recipient for a period of 
three years from the date of the closeout of the program, 
except as follows: 

(1) Records that are the subject of audit findings shall 
be retained for three years or until such audit 
findings have been resolved, whichever is later; 

(2) Records for nonexpendable property which was 



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PROPOSED RULES 



acquired with Federal grant funds shall be re- 
tained for three years after its final disposition; 

(3) Records for any displaced person shall be retained 
for three years after he/she has received final 
payment; 

(4) Records pertaining to each real property acquisi- 
tion shall be retained for three years after settle- 
ment of the acquisition, or until disposition of the 
applicable relocation records in accordance with 
Subparagraph (3) of this Section, whichever is 
later; and 

(5) If a litigation, claim or audit is started before the 
expiration of the three year period, the records 
shall be retained until all litigations, claims, or 
audit findings involving the records have been 
resolved. 

(d) All records shall be sufficient to determine compli- 
ance with the requirements and primary objectives of the 
Community Development Block Grant Program and all 
other applicable laws and regulations. All accounting 
records shall be supported by source documentation and 
shall be in compliance with Rule .0906 of this Section. 

Authority G.S. 143B-10; 143B-431; 42 U.S.C.A. 
5304(d)(2). (e); 24 C.F.R. 570.490. 

SECTION .1000 - COMPLIANCE REQUIREMENTS 

.1002 CITIZEN PARTICIPATION 

(a) Each applicant and recipient shall provide citizens 
with an adequate opportunity for meaningful involvement on 
a continuing basis and for participation in the planning, 
implementation and assessment of the program. Each 
applicant and recipient shall provide adequate information to 
citizens, hold public hearings, provide for timely responses 
to citizens' complaints, and certify that it is following a 
detailed Citizen Participation Plan as in (b) through (Ti) of 
this Rule. All public hearings shall be held by the govern- 
ing board of the applicant or recipient. 

(b) Citizen participation in the application process. 
(1) Each applicant for CDBG funds shall: 

(A) Solicit and respond in a timely manner to 
views and proposals of citizens, particularly 
low- and moderate-income persons, mem- 
bers of minority groups, and residents of 
blighted areas where activities are pro- 
fKDsed. Applicants shall respond in writing 
to written citizen comments. Responses 
shall be made within ten calendar days of 
receipt of the citizen comment. 

(B) Provide technical assistance to facilitate 
citizen participation, where requested. The 
technical assistance shall be provided to 
groups representative of persons of low- 
and moderate-income that request such 
assistance in developing proposals. The 
level and type shall be determined by the 



applicant. 

(C) Provide adequate notices of public hearings 
in a timely maimer to all citizens and in 
such a way as to make them understandable 
to non-English speaking persons. Hearings 
must be held at times and locations conve- 
nient to potential or actual beneficiaries and 
with accommodations for the handicapped. 
A notice of the public hearing shall be 
published at least once in the nonlegal 
section of a newspaper having general 
circulation in the area. The notice shall be 
published not less than ten days nor more 
than 25 days before the date fixed for the 
hearing. The notice of public hearing to 
obtain citizens' views after the application 
has been prepared, but prior to the submis- 
sion of the application to the Division, shall 
contain a description of the proposed pro- 
ject(s) including the proposed project loca- 
tion, activities to be carried out, and the 
total costs of activities. 

(D) Schedule hearings to obtain citizens' views 
and to respond to citizen proposals at times 
and locations which jjermit broad participa- 
tion, particularly by low- and moder- 
ate-income persons, members of minority 
groups, handicapped persons, and residents 
of blighted neighborhoods and project 
areas. 

(E) Conduct one public hearing during the 
planning process to allow citizens the op- 
portunity to express views and proposals 
prior to formulation of the application. 
application, except that applicants in the 
Urgent Needs category are exempt from 
holding this public hearing. 

(F) Conduct one public hearing after the appli- 
cation has been prepared but prior to sub- 
mission of the application to the Division. 

(2) Submitting objections to the Division. 

(A) Persons wishing to object to the approval 
of an application by the Division shall 
submit to the Division their objections in 
writing. The Division will consider objec- 
tions made only on the following grounds: 

(i) The applicant's description of the 
needs and objectives is plainly incon- 
sistent with available facts and data, 
(ii) The activities to be undertaken are 
plainly inappropriate to meeting the 
needs and objectives identified by 
the applicant, and 
(iii) The application does not comply 
with the requirements of this Sub- 
chapter or other applicable laws. 

(B) All objections shall include an identification 



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1119 



PROPOSED RULES 



of the requirements not met. In the case of 
objections made on the grounds that the 
description of needs and objectives is 
plainly inconsistent with significant, gener- 
ally available facts and data, the objection 
shall include the facts and data upon which 
the objection is based. 

(c) Citizen Participation Plan. Recipients shall develop 
and adopt, by resolution of their governing board, a written 
citizen participation plan developed in accordance with all 
provisions of this Rule and which: 

(1) provides for and encourages citizen participation 
with particular emphasis on participation by 
persons of low- and moderate-income who are 
residents of slum and blight areas and of areas in 
which CDBG funds are proposed to be used; 

(2) provides citizens with reasonable and timely 
access to local meetings, information, and records 
relating to the recipient's proposed and actual use 
of funds; 

(3) provides for technical assistance to groups repre- 
sentative of persons of low- and moderate-income 
that request such assistance in accordance with 
Part (b)(1)(B) of this Rule; 

(4) provides for public hearings to obtain citizen 
views and to respond to proposals and questions 
at all stages of the community development 
program in accordance with Paragraphs (b), (f), 
and (g) of this Rule; 

(5) provides a procedure for developing timely writ- 
ten responses to written complaints and grievances 
within ten calendar days of receipt of the com- 
plaint. The procedure shall include all provisions 
of Paragraph (d) of this Rule; and 

(6) identifies how the needs of non-English speaking 
residents will be met in the case of public hear- 
ings where a significant number of non-English 
speaking residents can be reasonably expected to 
participate. 

(d) The recipient shall develop and adopt a written 
complaint procedure to respond to citizen complaints 
involving the CDBG program. The complaint procedure 
shall be applicable through the life of the grant and available 
to the general public. It shall specify that the recipient will 
respond in writing to written citizen complaints within ten 
calendar days of receipt of the complaint. The procedure 
shall include a phone number for further information or 
clarification on the complaint procedure and shall identify 
any local procedures or appeals process that would normally 
be used by the recipient to address citizen complaints. The 
complaint procedure shall also state that if a citizen lodging 
a complaint is dissatisfied with the local response, then that 
person may direct the complaint to the North Carolina 
Division of Community Assistance. 

(e) Citizen participation during program implementation. 
Citizens shall have the opportunity to corrunent on the 
implementation of a Community Development Program 



throughout the term of the program. Recipients shall solicit 
and respond to the views and proposals of citizens in the 
same manner as in Part (b)(1)(A) of this Rule. 

(0 Citizen participation in the program amendment 
process. 

(1) Recipient procedures. 

(A) Recipients proposing amendments which 
require prior Division approval in accor- 
dance with Rule .0910 of this Subchapter 
will be required to conduct one public 
hearing prior to submission of the amend- 
ment to the Division in the same manner as 
in Part (b)(1)(C) of this Rule. 

(B) Each recipient shall respond to citizen 
objections and comments in the same man- 
ner as in Part (b)(1)(A) of this Rule. 

(2) Submitting Objections to the Division. 

(A) Persons wishing to object to the approval 
of an amendment by the Division shall 
make such objection in writing. The Divi- 
sion will consider objections made only on 
the following grounds: 

(i) The recipient's description of needs 
and objectives is plainly inconsistent 
with available facts and data, 
(ii) The activities to be undertaken are 
plainly inappropriate to meeting the 
needs and objectives identified by 
the recipient, and 
(iii) TTie amendment does not comply 
with the requirements of this Section 
or other applicable laws and regula- 
tions. 

(B) All objections shall include an identification 
of the requirements not met. In the case of 
objections made on the grounds that the 
description of needs and objectives is 
plainly inconsistent with significant, gener- 
ally available facts and data, the objection 
shall include the facts and data upon which 
the objection is based. 

(g) Citizen participation in the program closeout process. 

(1) Recipients shall conduct one public hearing to 
assess program performance during the grant 
closeout process and prior to the actual closeout 
of the grant in the same manner as in Part 
(b)(1)(C) of this Rule. 

(2) Recipients shall continue to solicit and respond to 
citizen comment in the same manner as in Part 
(b)(1)(A) of this Rule until such time as the grant 
program is closed. 

(h) Persons may submit written comments to the Division 
at any time concerning the applicant's or recipient's failure 
to comply with the requirements contained in this Subchap- 
ter. 

(i) All records of public hearings, citizens' comments, 
responses to comments and other relevant documents and 



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PROPOSED RULES 



papers shall be kept in accordance with Rule .0911 of this 
Subchapter. All program records shall be accessible to 
citizens in accordance with Rule .091 Ifb) of this Subchap- 
ter. 

Authority G.S. MSB- 10; 143B-431; 42 U.S.C.A. 5304(a)(2); 
24 C.F.R. 570.486. 

.1004 ENVTRONMENTTAL REVIEW 

Applicants and recipients shall comply with the policies of 
the National Environmental Policy Act of 1969 and all other 
appUcable provisions of Federal and State law which further 
the purposes of such act (as specified in 24 C.F.R. Part 58). 
This Subchapter incorporates by reference 24 CFTl Part 58, 
including subsequent amendments and editions. Copies of 
this federal regulation are available for public inspection 
from the Division of Community Assistance. Single copies 
are available from this Division in Raleigh, North Carolina, 
for one dollar ($1.00) each. 

(1) Applicants and recipients shall assume the responsi- 
bilities for environmental review, decision-making, 
and other actions which would otherwise apply to the 
Secretary, under NEPA and other provisions of law 
which further the purposes of NEPA in accordance 
with section 104(f)(4) of Title I of the Housing and 
Community Development Act of 1974, as amended 
and the implementing regulations at 24 C.F.R. Part 
58. 

(2) Applicants and recipients shall meet the requirements 
of the following Federal laws and regulations: 

(a) The National Environmental Policy Act of 
1969 ("NEPA", 42 U.S.C. 4321 et seq., 
P.L. 91-190) which establishes national 
policy, goals, and procedures for protect- 
ing, restoring and enhancing environmental 
quality; 

(b) Environmental Review Procedures for Title 
I Community Development Block Grant 
Programs, (24 C.F.R. Part 58), which sets 
forth the procedures for carrying out the 
environmental responsibilities under NEPA; 

(c) Executive Order 11988, Floodplain Man- 
agement, May 24, 1977 (42 F.R. 26951 et 
seq.); 

(d) Executive Order 11990, Protection of 
Wetlands, May 24, 1977 (42 F.R. 26961 et 
seq.); 

(e) The Coastal Zone Management Act of 
1972, (16 U.S.C. 1451 et seq.), as 
amended; 

(0 The Safe Drinking Water Act of 1974 (42 

U.S.C. 201, 300(f) et seq., and 21 U.S.C. 

349), as amended, particularly concerning 

sole source aquifers; 
(g) The Endangered Species Act of 1973 (16 

U.S.C. 1531 et seq.), as amended; 
(h) The Wild and Scenic Rivers Act of 1968 



(16 U.S.C. 1271 et seq.), as amended; 
(i) The Clean Air Act (42 U.S.C. 7401 et 

seq.); 
(j) The Fish and Wildlife Coordination Act of 

1958 as amended, (16 U.S.C. 661 et seq); 
(k) The Federal Water Pollution Control Act 

(P.L. 92-500); 
(1) HUD environmental criteria and standards 

(24 C.F.R. Part 51), and the Council on 

Environmental Quality Standards at 40 

C.F.R. Part 1500-1508; 
(m) The National Historic Preservation Act of 

1966 (16 U.S.C. 470 et seq.) as amended; 
(n) Procedures for the Protection of Historic 

and Cultural Properties, 36 CFR 800; 
(o) Executive Order 11593, Protection and 

Enhancement of the Cultural Environment. 

May 13, 1971 (36 F.R. 8921 et seq.); 
(p) TTie Reservoir Salvage Act of 1960 (16 

U.S.C. 469 et seq.); as amended by the 

Archaeological and Historic Preservation 

Act of 1974; and 
(q) The Flood Disaster Protection Act of 1973 

(42 U.S.C. 4001 et seq.), as amended. 

(3) Applicontfl and rcoipionts shall submit adequate 

information in a form pr e corib e d by the Divioion 
on th e e nvironm e ntal impact of e ach proj e ct so 
that the Division can detormino projcxjt oompli 
anoo with the requirement s of tho North Carolina 
Environm e ntal Policy Act of 1971 (SEPA) (G.S. 
1 13A Articl e 1). — A d e t e rmination by th e Divioion 
that tho project complies with the requirements of 
SEPA will bo made before tho Department will 
roloaoo fund s to th e r e cipi e nt. 
f4)(3} The applicant and recipient shall meet the require- 
ments of the following State laws and rules where 
they are applicable to the provisions of this Sub- 
chapter: 

(a) Chapter 113A of the General Statutes of 
North Carolina, entitled Pollution Control 
and Environment; 

(b) G.S. 143-215.108 which designates the 
Environmental Management Commission as 
the issuing authority for air quality permits; 

(c) G.S. 143-215.1 which governs water pollu- 
tion permits and designates the Environ- 
mental Management Commission as the 
issuing authority; 

(d) G.S. 121-12, Protection of Properties on 
the National Register, which requires con- 
sideration of project impact on any prop- 
erty listed in the National Register; and 

(e) G.S. 70-1 through 70-3, Indian Antiquities 
laws, which urges private landowners to 
refrain from excavation and other actions 
leading to the destruction of Indian archae- 
ological sites on their property. It also 



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1121 



PROPOSED RULES 



requires local governments to report the 
discovery of artifacts and refrain from 
further excavation or construction when 
excavating or constructing on public lands. 
(#)(4} It is the responsibility of the recipient to obtain all 

air pollution and water pollution' permits for a 

CDBG program pursuant to Subparagraph (4) of 

this Rule. 
f^(5) All records and data shall be maintained pursuant 

to Rule .0911 of this Subchapter. 

Authority- G.S. 143-215.1; 143-215.108; 143B-10; 
143B-431; 24 C.F.R. Pan 58; 24 C.F.R. 570.487; 42 
U.S.C.A. 4321 through 4370; 42 U.S.C.A. 5304(b)(4). 

.1009 HOUSING REHABE.it ATION 

(a) Grant assistance may be used for housing rehabilita- 
tion activities eligible under Rule .0301 of this Subchapter. 

(b) Housing shall be rehabilitated at least to Section 8 
Housing Qualit>' Standards, as defined in 24 C.F.R. 
882.109. 882.109 and further referred by N.C. Housing 
Rehabilitation Standards as established by N. C. Division of 
Community Assistance. 

(c) Replacement construction and construction elements 
that are exposed during rehabilitation, shall be done in 
compliance with the North Carolina Slate Building Code, 
Volumes I, IB, H, III and IV. 

(d) Section 8 Housing Quality Standards shall not be 
applicable when work is funded under Local Option Activi- 
ties as described in Rule .0403(c) of this Subchapter. 

(e) Housing rehabilitation activities must comply with the 
following standards required under this Subchapter: 

fi) Architectural barriers (Rulo .1007); 

{S^Q} Lead-based paint CRule .1011); and 
(^£2} Equal opportunity (Rule .1001). 

(f) The recipient shall provide for reasonable benefits to 
any person involuntarily and permanently displaced as a 
result of the use of CDBG assistance to substantially 
rehabilitate property. 

(g) Homes inhabited by disabled or elderly persons must 
be analyzed as to the physical needs of such persons. 
Improvements such as widened doorways, ramps, level 
entry and doorways, and grab bars in bath areas must be 
installed if appropriate. 

Authority G.S. 143B-10; 1438-431; 24 C.F.R. 570.487; 42 
U.S.C.A. 5305(a). 

.1011 LEAD-BASED PAINT 

(a) The recipient must comply with the Lead-Based Paint 
Poisoning Prevention Act [42 U.S.C. 4831("b)], 24 CFR 
Part 570.608, and 24 CFR Part 35, including provisions and 
subsequent amendments of the above: 

(1) prohibiting the use of lead-based paint; 

(2) requiring elimination of lead-based paint hazards; 
and 

(3) requiring notification of the hazards of lead-based 



paint poisoning to purchasers, owners and tenants 

of housing constructed prior to 1978 which was 

acquired or rehabilitated with CDBG assistance. 

fb) All construction contracts as described in this Rule 

shall contain a provision prohibiting the use of lead based 

paint. 

(c) This Subchapter incorporates by reference 24 CFR 
570.487(c) including subsequent amendments and editions. 
Copies of this Section are available for public inspection 
from the Division of Community Assistance. Single copies 
are available from this Division in Raleigh, North Carolina 
at no charge. 

(d) In lieu of the testing procedures set forth in the 
Guidelines, the recipient may forego testing and abate all 
applicable surfaces in accordance with the methods set out 
in the Guidolino3. Guidelines or HUD regulations. 

(e) Lead-based paint hazard evaluation and abatement 
activities financed with CDBG funds must be conducted by 
individuals and firms that are certified in accordance with 
the applicable EPA and HUD requirements for Lead Based 
Paint activities. 

Authority G.S. 143B-10; 143B-431; 42 U.S.C.A. 5304(b)(4); 
42 U.S.C.A. 4821 through 4846. 

SECTION .1300 - HOUSING DEVELOPMENT 
PROJECTS 

.1301 DESCRIPTION 

Grants under this category will develop support the 
development of housing opportunities for low- and moder- 
ate-income persons. The Division may limit the use of 
program funds to specific eligible activities. 

Authority G.S. 1438-10; 1438-431; 24 C.F.R. 570.483. 

.1302 ELIGIBILITY REQUIREMENTS 

(a) Applications for Housing Development funds must 
show that: 

(1) At least 51 percent of the CDBG funds proposed 
for each project will benefit low- and moder- 
ate-income persons; and 

(2) CDBG fiinds proposed for each activity will meet 
a national objective as specified in HUD regula- 
tions previously incorporated by reference, except 
that funds shall not be used to meet the national 
objective of urgent need which is covered by Rule 
.0801 of this Subchapter. 

Applicants that do not meet these requirements will not be 
rated or funded. 

(b) Applicants shall have the capacity to administer a 
Community Development Block Grant Program. The 
Division may examine the following areas to determine 
capacity: 

(1) audit and monitoring findings on previously 
funded Community Development Block Grant 
Programs, and the applicant's fiscal accountability 



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PROPOSED RULES 



as demonstrated in other state or federal Programs 
or local government financial reports; and 

(2) the rate of expenditure of funds in previously 
funded Community Development Block Grant 
Programs. 
(o) Houoing Dovolopmont proj e oto will be rat e d by th e 
Divioion againot th e following ap e oifio crit e ria: 

f4-) 85-% — of tho project rating is basod upon tho 

project doaign including the feasibility of the 
projoot, ito financial d e oign, tho capacity and 
oxpori e noo of the applicant and other partio o 
involved, tho amount of iovoraging other funds. 
tho fluitability of tho site and surrounding ameni 
ties, and th e d e mand from th e mark e t; and 

(S) 1-5-% — of th e project rating is ba se d upon th e 

benefit to low and moderate inoomo poroons both 
immodiato and long tomh - 

Authority G.S. 143B-10; 143B-431; 24 C.F.R. 570.482; 24 
C.F.R. 570.483. 

.1303 ELECTION CRITERIA 

(a) Selection criteria will be announced by the Division 
prior to accepting applications for this category. The 
Division may accept applications on a continuous basis for 
dev e lopment grant during submission periods at any time 
after the announcement of selection criteria. 

(b) Housing Development projects will be rated by the 
Division against the following specific criteria: 

(1 ) 85% of the project rating is based upon the 
project design including the feasibility of the 
project, its financial design, the capacity and 
experience of the applicant and other parties 
involved, the amount of leveraging other funds, 
the suitability of the site and surrounding ameni- 
ties, and the demand from the marked; and 

(2) 15% of the project rating is based upon the 
benefit to low and moderate income persons both 
immediate and long-term. 

Authority G.S. 143B-10; 1433-431; 24 C.F.R. 570.489. 

SECTION .1700 - COMMUNITY EMPOWERMENT 
PROJECTS 

.1701 DESCRIPTION 

Grants under the Entropronourial Community Empower- 
ment Category will improve self-sufficiency and economic 
opportunities for low- and moderate-income persons. 



ate-income persons; and 

(2) CDBG funds proposed for each activity will meet 
a national objective as specified in HUD regula- 
tions previously incorporated by reference, except 
that funds shall not be used to meet the national 
objective of urgent need which is covered by Rule 
.0801 of this Subchapter. 

Applicants that do not moot thoso roquiromonts will not bo 
ratod or funded. 

(3) The project includes at least one dollar ($1.00) of 
non-CDBG funds to match each dollar of CDBG 
funds requested, except for projects in counties 
designated by the Secretary of Commerce as Tier 
One Enterprise Areas as defined in North Caro- 
lina General Statutes or areas designated by the 
federal government as Enterprise Zones. 

(h) Applicants shall have the capacity of administer a 
CDBG program. The Division may examine the following 
areas to determine capacity: 

(1) audit and monitoring findings on previously 
funded Community Development Block Grant 
programs, and the applicant's fiscal accountability 
as demonstrated in other state or federal programs 
or local government financial reports; and 

(2) the rate of expenditure of funds and accomplish- 
ments in previously funded CDBG programs. 
Applicants that show a lack of capacity will not be 
rated or funded. 

Authority G.S. 143B-10; 143B-431; 24 C.F.R. 570.482; 24 
C.F.R. 570.483. 

.1703 SELECTION CRITERIA 

(a) Projects will be evaluated and rated in accordance 
with the Annual Action Plan m the North Carolina Consoli- 
dated Plan. 

£b) Localities that have Community Empowerment grants 
that are open may not apply for additional funds under this 
category until the grant is closed. In addition, local govern- 
ments may have only one Community Empowerment 
application under review at one time. 

Selection criteria will be aimounced by the Division 45 
days prior to accepting applications for the Entr e pr e n e urial 
Community Empowerment Category. Criteria for awards 
are: 

(1) community need, 

(2) community impact, 

(3) project design, and 

(4) financial feasibility. 



Authority G.S. 143B-10; 1438-431; 24 C.F.R. 570.483. 



Authority G.S. 143B-10; 143B-431; 24 C.F.R. 570.489. 



.1702 ELIGIBILITY REQUIREMENTS 

(a) Applications for Entropronourial Community Empow- 
erment funds must show that: 

(1) At least 51 percent of the CDBG funds proposed 
for each project will benefit low- and moder- 



SECTION .1800 - NORTH CAROLINA 
DEVELOPMENT LOAN FUND 

.1801 GENERAL 

(a) The North Carolina Development Loan Fund is a loan 



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1123 



PROPOSED RULES 



program for non-entitlement communities participating in the 
Small Cities Communiry Development Block Grant program 
to access the Department of Housing and Urban Develop- 
ment's Section 108 Guaranteed Loan Program. The funds 
under this program are loaned to units of local governments 
for projects meeting one of the national objectives of 
benefitting low and moderate income persons, eliminating 
slums and blight or addressing a community's urgent needs. 
as defined in the Housing and Communiry Development Act 
of 1974 as amended. 

(b) The Division shall re\'iew applications from local 
governments to the Department of Housing and Urban 
Development under the Development Loan Fund program. 
The revieu' and approval must be made to pledge future 
state CDBG allocation as additional collateral for the 
Development Loan fund program. 

(c) The Division will review applications for projects 
with housing, commercial and mixed use components. TTie 
Commerce Finance Center will review and approve eco- 
nomic de\elopment projects. 

Authonn G.S. 143B-431: 153A-376: J60A-456: 24 C.F.R. 
570 Subpart M. 

.1802 ELIGIBLE ACTIVITIES 

(a) This section incorporates by reference as eligible 
activities those activities described in the Housing and 
Community De\elopment Act of 1974, as amended, includ- 
ing subsequent amendments and editions under Section 108 
and in :4 CFR 570.703. 

Ibl G^ 1 438-43 l(d)(3)f - further limits eligibility by 
finding that hotels, motels, private recreational facilities, 
private entertainment facilities and convention centers are 
ineligible for Development Loan Funds. 

(c) Copies of these sections of state and federal law and 
regulation are available for public inspection from the 
Division of Community Assistance. 

Authority G.S. 143B-431; 24 C.F.R. 570.703. 

.1803 ELIGIBILITY REQUIREMENTS 

(a) Applications for Development Loan Funds must show 
that: 

All activities are eligible under state and federal 

regulations; and 

De\'elopment Loan Funds proposed for each 

activity meet a national objective as specified by 

HUD regulations incorporated by prior reference; 

and 

The applicant has the capacity to administer a 

Development Loan Fund project. 
(h) The Division must make the following findings prior 
to an award: 

(1) A loan loss reserve is in place equal to 10% of 
the amount of the outstanding balance. 

(2) The approved loan may not take the total amount 
of outstanding obligations under the Development 



m 

(2} 
ill 



Loan Fund to more than twice the amount of the 
annual CDBG allocation. 

Authority G.S. 143B-431; 24 C.F.R. 570 Subpart M. 

.1804 SIZE OF LOAN APPROVALS 

(a) Maximum and minimum loan amounts will be 
published by the Division fn the annual Consolidated Plan 
Action Strategy. 

(b) Development Loan Funds approved shall not count 
toward a community's receipt of CDBG funds in any 
program year as outlined m Rule .0403 of this Subchapter. 

Authority G.S. 1438-431; 24 C.F.R. 570 Subpart M. 

.1805 SELECTION CRITERIA 

Projects will be evaluated and approved in accordance 
with the annual statement of program design approved by 
HUD. Selection factors include the following: 

O) Public benefit, 

(2) Project feasibility'. 

(3) Cash flow of the project, 

(4) Collateral of the project. 

Authority G.S. 143B-431: 24 C.F.R. 570 Subpart M. 



TITLE 10 - DEPARTMENT OF 
HUMAN RESOLTtCES 

Notice is hereby given in accordance with G.S. 
1508-21. 2 that the Division of Mental Health, Devel- 
opmental Dlsahilities and Substance Abuse Services intends 
to amend rules cited as 10 NCAC 14V .3402, .3803, .5602, 
and repeal rules cited as 10 NCAC 15A .0128 and .0129. 
Notice of Rule-making Proceedings was published in the 
Register on July 15, 1996. 

Proposed Effective Date: May 1, 1997 

Instructions on How to Demand a Public Hearing (must 
be requested in writing within 15 days of notice): Anyone 
who wishes to request a public hearing should submit the 
written request to Charlotte F. Hall, Rulemaking Coordina- 
tor, Division of Mental Health, Developmental Disabilities 
and Substance Abuse Serxices, Albemarle Building, 325 N. 
Salisbury Street, Raleigh, NC 27603-5906 within 15 days 
following this published notice. 

Reason for Proposed Action: 10 NCAC 14V .3402, 
.3803, .5602 - To clarify language contained in the Rule. 
10 NCAC 15 A .0128, .0129 - To repeal rules with duplica- 
tive language contained in other rules of this Section. 

Comment Procedures: Written comments may be submitted 
to Charlotte F. Hall , Rulemaking Coordinator , Division of 
Mental Health, Developmental Disabilities and Substance 



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Abuse Ser\'lces (DMH/DD/SAS), 325 N. Salisbury Street, 
Albemarle Bldg. , Suite 558, Raleigh, NC 27603-5906. FAX 
919-733-8259. Comments will be accepted until November 
14, 1996. 

Fiscal Note: These Rule do not ajfect the expenditures or 
revenues of state or local government funds. These Rules do 
not have a substantial economic impact of at least five 
million dollars ($5,000,000) in a 12-month period. 

CHAPTER 14 - MENTAL HEALTH: GENERAL 

SUBCHAPTER 14V - RULES FOR MENTAL 

HEALTH, DEVELOPMENTAL DISABILITIES, 

AND SUBSTANCE ABUSE FACILITIES AND 

SERVICES 

SECTION .3400 - RESIDENTIAL 

TREATMENT/REHABILITATION FOR 

INDIVIDUALS WITH SUBSTANCE ABUSE 

DISORDERS 

.3402 STAFF 

(a) Each facility shall have full-time staff as follows: 

(1) One full-time certified alcoholism, drug abuse or 
substance abuse counselor for a facility having up 
to 30 beds, and for every 30-bed increment or 
portion thereafter. On e staff m e mb e r for e ach 10 
bodo or incr e m e nt th e r e of. 

(2) One full-time qualified alcoholism, drug abuse or 
substance abuse professional or one full-time 
certified alcoholism, drug abuse, or substance 
abuse counselor for facilities having 1 1 or more 
beds, and for every additional 10-bed increment 
or portion thereafter. At least ono of tho full timo 
otaff mombors r e quired by Subparagraph (a)(1) of 
thi s Rule s hall b e a fijll tim e c e rtifi e d alooholiom. 
drug abuse, or subatanco abuao coun s elor for each 
10 bod s or increment thereof. 

(^ Tho remaining full tim e staff m e mb e rs r e quired 

by Subparagraph (a)(1) of this Rule may b e e ith e r 
qualified alcoholi s m, drug abuse, or sub s txmc e 
abuse counselors. 

(b) A minimum of one staff member shall be present in 
the facility when clients are present in the facility. 

(c) In facilities that serve minors, a minimum of one staff 
member for each five or fewer minor clients shall be on 
duty during waking hours when minor clients are present. 

(d) Any qualified alcoholism, drug abuse or substance 
abuse professional who is not certified shall become certi- 
fied by the North Carolina Substance Abuse Professional 
Certification Board within 26 months from the date of 
employment, or from the date an unqualified person meets 
the requirements to be qualified, whichever is later. 

(e) Each direct care staff member shall receive continu- 
ing education to include understanding of the nature of 
addiction, the withdrawal syndrome, group therapy, and 



family therapy. 

(f) Each direct care staff member in a facility that serves 
minors shall receive specialized training in youth develop- 
ment and therapeutic techniques in working with youth. 

(g) Each facility shall have at least one staff member on 
duty trained in the following areas: 

(1) alcohol and other dnig withdrawal symptoms; and 

(2) symptoms of secondary complications to alcohol- 
ism and drug addiction. 

Authority G.S. 122C-26; 143B-147. 

SECTION .3800 - ALCOHOL AND DRUG 
EDUCATION TRAFFIC SCHOOLS (ADETS) 

.3803 OPERATIONS 

(a) Curriculum. School instructors shall use a curricu- 
lum approved by the Division. Instructors may use the 
curriculum specified in the "Curriculum Manual for Alcohol 
and Drug Education Traffic Schools" (DMH/DD/SAS 
publication APSM 125-1, 130-1). Instructors who desire to 
use a different curriculum shall submit it to the Division for 
prior approval. The Division shall review the proposed 
curriculum to determine that it follows professionally 
accepted standards to meet the course objectives of reducing 
the frequency of alcohol and drug-related traffic offenses by 
modifying the behavior of course participants and of 
reducing recidivism, blood alcohol content levels, and 
alcohol/drug crashes. 

(1) The program of instruction shall consist of not 
less than ten hours of classroom instruction. 

(2) Each school may provide up to three additional 
hours for classroom time and such activities as an 
initial student assessment, data gathering or a 
summary conference with students. Information 
r e garding assessments is available Requirements 
contained in 10 NCAC 18F .0300 SUBSTANCE 
ABUSE ASSESSMENTS FOR INDIVIDUALS 
CHARGED WITH OR CONVICTED OF DRIV- 
ING WHILE IMPAIRED (DWI) shaU be fol- 
lowed by anyone who provides DWI assessments . 

(b) Class Schedule. Each school shall provide a written 
notice to each student referred by the court as to the time 
and location of all classes which the student is scheduled to 
attend. 

(1) Each student shall be scheduled to attend the first 
and the last class sessions in the order prescribed 
in the curriculum. 

(2) Classes shall be scheduled to avoid the majority of 
employment and educational conflicts. 

(3) Each school shall have a written policy which 
allows for students to be excused from assigned 
classes by the instructor provided that the excused 
absence is made up and does not conflict with 
Subparagraph (b)(1) of this Rule. 

(4) No class session shall be scheduled or held for 
more than three hours excluding breaks on any 



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1125 



PROPOSED RULES 



day or evening. 

(c) Class Size. Class size shall be limited to a maximum 
of 35 persons. 

{4) — Court Liaiaono. — Each school shall dovolop and 
implement written procoduroa of liaiaon with the court. 
TheoQ prooodur e o ohall bo agreod upon and oign e d by th e 
dooignatod omploy oo of th e oohool and by the ol e rk of court, 
judge and diatrict attorney. Theao procedures shall include 
at least the following: 

f4^ the proc e dure uood to obtain r e ferral of offenders 

from the court; 

(5j a provision that the school will notify' each student 

of the time, date, and location of assigned classes; 

(^^ the procedur e for notify'ing th e court of a Btu 

dent' s s uoo e Doful compl e tion of the cours e ; 

(4) communicating to s tudents in writing the require 

ments for completing the course and developing a 
procedure to notif)' th e court of non complianc e 
cas e s. 

(d) DWI Services Certificates Of Completion. The 
original copy of the North Carolina Department of Human 
Resources DWI Services Certificates of Completion shall be 
fonvarded to DMH/DD/SAS for review within two weeks 
of completion of all services. 

Authority G.S. 20-179; 20-179.2; MSB- 147. 

SECTION .5600 - SUPERVISED LIVING FOR 
INDIVIDUALS OF ALL DISABILITY GROUPS 

.5602 STAFF 

(a) Staff-client ratios shall be determined so as to enable 
staff to respond to individualized client needs. 

(b) A minimum of one staff member shall be present at 
all times when any adult client js on the premises, except 
when the client has been deemed capable of remaining Ln the 
home without supervision for a specified time by a qualified 
professional of the operating agency or area program. The 
approval shall be documented. A minimum of on e staff 
member s hall be present at all times when any adult client 
is on the premises in any facility scr i 'ing clients with 
substanc e abus e disord e rs. — In faciliti e s s e rs'ing cli e nts of 
other disability groups, a minimum of on e staff m e mb e r 
s hall be pre s ent at all time s when any adult client is on the 
promises except when the client has been doomed capable of 
r e maining in th e hom e without sup e rsision for a sp e cifi e d 
tim e by a qualified prof e ssional of th e op e rating agency or 
area program. — Tho approval s hall bo documented. 

(c) Staff shall be present in a facility in the following 
client-staff ratios when more than one child or adolescent 
client is present: 

(1) children or adolescents with mental illness or 
emotional disturbance shall be served with one 
staff present for every four or fewer clients 
present; 

(2) children or adolescents with substance abuse 
disorders shall be served with a minimum of one 



staff present for every five or fewer minor clients 
present during waking hours. However, only one 
staff member need be present during sleeping 
hours if emergency back-up procedures as deter- 
mined by the governing body are sufficient to 
allow only one staff member on duty; or 
(3) children or adolescents with developmental dis- 
abilities shall be served with one staff present for 
every one to three clients present and two staff for 
every four or more clients present. However, 
only one staff member need be present during 
sleeping hours if emergency back-up procedures 
are sufficient to allow only one staff member on 
duty. 

(d) In facilities which serve clients who have substance 
abuse disorders: 

(1) at least one staff member who is on duty shall be 
trained in alcohol and other drug withdrawal 
symptoms and symptoms of secondary complica- 
tions to alcohol and other drug addiction; 

(2) when the clients are minors, staff shall be trained 
in youth development and therapeutic techniques 
in working with youth; and 

(3) the services of a certified alcoholism counselor, a 
certified drug abuse counselor or a certified 
substance abuse counselor shall be available on an 
as-needed basis for each client. 

(e) In facilities which serve individuals with behavior 
disorders in addition to developmental disabilities, the staff 
shall include at least one staff member who has received 
training in the area of behavior management through 
educational preparation in special education, psychology or 
a closely related field. 

Authority G.S. MSB- 147. 

CHAPTER 15 - MENTAL HEALTH HOSPITALS 

SUBCHAPTER 15A - GENERAL RULES 
FOR HOSPITALS 

SECTION .0100 - VOLUNTARY ADNHSSIONS: 

INVOLUNTARY COMMITMENTS AND 
DISCHARGES OF ADULTS FROM REGIONAL 
PSYCHIATRIC HOSPITALS 

.0128 PLACEMENT OF CLIENTS OUTSIDE 
THEIR COUNTY OF RESIDENCE 

{a) — \X^en a client of a hospital is to be placed in a 
facility outsid e his county of r e sid e nc e , hospital staff s hall 
consult with staff of th e area program which s e rs' e s th e 
county in which tho client is to bo placed prior to making 
such a placement. — Con s ultation shall include such issues as: 

m th e cli e nt' s charact e ristics; 

(3) th e ar e a program's knowl e dg e of th e facility b e ing 

considered; and 
f^^ tho area program's assessment of the facility's 



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PROPOSED RULES 



ability to manago tho cliont boing oonaidorod for 

plaoom e nt. 

(b) WTion g oliont dioohargod from a hoopital io plac e d 

outaido hio count)' of rooidonco, tho hoapital shall send, at 

tho time of diochargo, tho foUosving rocorda to tho aroa 

program in whooo oatohmont area tho oli e nt io placed: 

(4^ hoopital'o poyohiatrio ovaluation; 

(3) aooial history; and 

(3) post institutional plan- 
In addition, th e hoopital diochargo oummar)' shall b e s e nt to 
that ar e a program within 30 days of diocharg e . 

(e) — Hospital staff ohall notify tho aroa program that 
s orvog tho cliont's county of rosidonco of tho client's 
plac e m e nt oito within 72 houro of all plann e d diooharg e o. 
That aroa program ohall o e nd to th e ar e a program in whoo e 
count)' tho cliont will bo plaood a copy of tho cliont's most 
rocont troatmont plana, medication shcots and othor portinont 
ovaluation information in aooordano e with G.S. 122C 53(a) 
and 122C 55(a). 

(4) — Tho aroa program in whoso count)' tho cliont io 
placed shall provide sor^'icoa to that client on tho samo basis 
as B e r i 'io e D ar e provided to othor resid e nts of th e catchm e nt 



within 15 days of this notice and addressed to Charlotte F. 
Hall, Division of MH/DD/SAS, 325 N. Salisbury Street, 
Albemarle Bldg. , Raleigh, NC 27603-5906. 

Reason for Proposed Action: To adopt rules in accor- 
dance with G.S. 122C-112(a)(14) as set forth in the 1995 
Session Laws Chapter 249 for determining eligibility, 
ensuring the provision of services, and providing for con- 
tested case hearings for eligible assaultive and violent 
children. 

Comment Procedures: Please submit written comments to 
Charlotte F. Hall, Division of Mental Health, Developmental 
Disabilities and Substance Abuse Services (DMH/DD/SAS), 
325 N. Salisbury Street, Albemarle Bldg., Suite 558, 
Raleigh, NC 27603-5906, FAX 919-733-8259. The deadline 
for written comments is November 15, 1996. 

Fiscal Note: These Rules do affect the expenditures or 
revenues of state funds. These Rules do not affect local 
government funds. These Rules do not have a substantial 
economic impact of at least five million dollars ($5,000,000) 
in a 12-month period. 



Authority G.S. 122C-3; 122C-112; 122C-117; 143B-147. 

.0129 RESOLUTION OF DIFFERENCES OF 
OPINION 

(a) Except ao provided in Rule .0122(b) of this Section, 
difforono e o of opinion betwe e n ar e a program staff and 
hoopital staff r e garding admiooion, troatmont or discharg e 
isauoa ahall be roaolvod through negotiation involving 
appropriate hoopital and area program staff up to and 
including th e area program's director and th e hoopital'o 
dir e ctor. 

fb) — If reaolution cannot be roachod by the Diroctor s of 
tho tv i 'o organizations, the iaaue in dispute may bo token by 
e ith e r party to th e appropriat e r e gional director. 

(e^ — The r e gional director may choos e to function ao 
mediator of tho dispute or ho may choose to refer tho matter 
to tho Diviaion director for resolution. 

Authority G.S. 143B-147. 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the Director of the Division of Mental 
Health, Developmental Disabilities and Substance Abuse 
Services intends to adopt the rule cited as 10 NCAC 18W 
.0201 - .0219. Notice of Subject Matter was published in 
the Register on November 1 , 1995. 

Proposed Effective Date: January 1 , 1997 

Instructions on How to Demand a Public Hearing: A 

demand for public hearing must be requested in writing 



CHAPTER 18 - MENTAL HEALTH: OTHER 
PROGRAMS 

SUBCHAPTER 18W - DESIGNATION OF AREA 

MENTAL HEALTH: MENTAL RETARDATION 

AND SUBSTANCE ABUSE AUTHORITIES AND 

CATCHMENT AREAS 

SECTION .0200 SERVICES FOR ELIGIBLE 
ASSAULTIVE AND VIOLENT CHILDREN AND 
ADOLESCENTS 

.0201 SCOPE 

(a} These Rules implement G.S. 122C-112(a)(14) and 
122C-194 through 122C-200 by establishing requirements 
for: 

(1) designating Eligible Assaultive and Violent Chil- 
dren (EAVC); 

(2) ensuring provision of services to EAVC clients; 
and 

(3) administrative review of decisions related to 
EAVC services or eligibility 

(b) These Rules shall govern all disputes related to 
EAVC services and eligibility unless those disputes are 
governed by Procedures Governing Programs and Services 
for Children with Special Needs. 

(c) Each EAVC client shall be provided services that 
include: 

(1) habilitation. including medical treatment, educa- 
tion, training and care, suited to his needs, which 
affords him a reasonable chance to acquire and 
maintain those life skills that enable him to cope 
as effectively as his own capabilities permit with 



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1127 



PROPOSED RULES 



the demands of his own person and of his envi- 
ronment and to raise the level of his physical, 
mental and social efficiency. Such habilitation 
shall create a reasonable expectation of progress 
toward the goal of independent community living. 

(2) the least restrictive, i.e.. most normal, living 
conditions appropriate for that person. Among 
the factors to be considered in determining the 
least restrictive living conditions appropriate for 
the individual are the need to minimize institution- 
alization and the need to minimize the possibility 
of harm to the individual and society. 

(3) goals, as appropriate to the individual, that enable 
the client to move from: 

(A) Living and programming segregated from 
the community to living and programming 
integrated with the community; 

(B) More structured living to less structured 
living; 

(C) Group residences to individual residences; 
and 

(D) Dependent living to independent living. 

(4) such placements and services as are actually 
needed as determined by a Treatment/Habilitation 
Plan rather than such placements and services as 
are currently available. If placements and ser- 
vices actually needed are not available, they shall 
be developed and implemented within a reason- 
able period. Prior to development and implemen- 
tation of needed placements and services, the 
person shall receive placement and services which 
meet as nearly as possible the person's actual 
needs. 

Authority G.S. 122C-3; 122C-112; 122C-194; 122C-195; 
122C-196; 122C-197; 122C-198; 122C-199; 122C-200. 

.0202 DEFINmONS 

(a) This Rule contains definitions that apply to all of the 
rules ijQ this Section. Definitions contained in G.S. 122C-3 
shall also apply. 

fb) Unless otherwise indicated, the following terms shall 
have the meanings specified: 

( 1) "Advocate or Representative" means an attorney 
or guardian ad litem pursuant to G.S. 7 A for an 
EAVC applicant or client. In the event that an 
EAVC applicant or client has a representative 
other than an attorney retained by the client or 
parent/ guardian or GAL appointed under G.S. 
7A. the Department or Division shall retain the 
right to challenge whether a representative is in 
fact acting on behalf of the child and at tfie child's 
request. 

(2) "Appropriate Services" means services which 
include a good faith and professionally competent 
effort to enable the child to overcome or cope 
with the problems that led to eligibility and to 



prepare the child for the reasonably expected life 
and problems to be encountered in adulthood. 
The provision of appropriate services is judged 
against the needs of the individual, which are 
based on the capabilities and potential of the 
individual. The eligible client is not guaranteed a 
"cure" or a "positive outcome." but rather a good 
faith effort to accomplish the goals set forth 
herein. 

£3} "Contract agency" means an agency or entity 
under contract with the Division, acting in the 
role of an area program for purposes of serving 
EAVC in a particular geographic area. 

(4) "Division" means the Division of Mental Health. 
Developmental Disabilities and Substance Abuse 
Services (DMH/DD/SAS). 

£5} "Director" means the Director of the Division of 
DMH/DD/SAS. 

(6) "EAVC applicant or Willie M. nominee" means 
any child under the age of 18 who has applied for 
or been nominated for determination of eligibility 
as a Willie M. class member or an EAVC client. 

(7) "Eligible assaultive and violent child (EAVC)" 
means a child under the age of 18 who has been 
determined by the Department of Human Re- 
sources to meet the eligibility criteria as defined 
in these Rules and is eligible to receive the ser- 
vices needed. 

(8) "Essential needs" means behaviors or supports 
which must be in place for the child to overcome 
or cope with the problems that led to EAVC 
eligibility, to prepare for adulthood and to acquire 
and maintain life skills consistent with the indi- 
vidual's potential and capabilities. 

(9) "Lead agency" means the Division at the State 
level and the area MH/DD/SA program or con- 
tract agency at the local level. 

(10) "Legally responsible person" means the term as 
defined in G.S. 122C-3. 

(1 1) "Outcome domain areas " means areas, as indi- 
cated for each EAVC client, within which a 
client's essential needs shall be defined. The 
areas shall include social, behavior, education, 
vocation, housing/residential, and health (includ- 
ing mental health). 

(12) " Treatment/habilitation plan (T/HP)" means a 
written plan which is developed by the group of 
individuals (the team) knowledgeable about and 
involved with addressing the child's needs. The 
plan contains a written statement of the child's 
needs in the essential areas, or domains, of life 
(as defined in this Section), and the supports and 
interventions which are required in order to 
address the child's needs (as defined in this 
Section). Mandatory members of the T/HP team 
include the child, parent or guardian, case man- 

and local school system representative. 



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PROPOSED RULES 



Clinical input concerning the child's needs for use 
in developing, implementing and reviewing the 
T/HP shall be provided to the team by clinicians 
with expertise and experience related to serving 
children with emotional, mental or neurological 
handicapping conditions accompanied by behavior 
characterized as assaultive or violent. 

(13) "Willie M. Class Member" means a child under 
the age of 18 who has been or is determined by 
the Department of Human Resources to meet the 
criteria for inclusion as a member of the plaintiff 
class in the Willie M.. et aL v^ James B. Hunt. 
Jr., et al lawsuit (United States District Court for 
the Western District of North Carolina C- 
C79CV294 - MU). All Willie M. class members, 
otherwise eligible for services, are Eligible As- 
saultive and Violent Children, according to the 
rules herein. 

(14) "Youth Behavioral Services Client (YBSC)" 
means, for the purposes of these Rules, a Willie 
M. class member and an EAVC. 

Authority G.S. 122C-3; 122C-112. 

.0203 GENERAL PROVISIONS 

(a) The Secretary of the Department of Human Resources 
shall designate the Director of the Division with lead 
responsibility in carrying out the implementation of these 
Rules and services provided pursuant to these Rules. 

(b) Designation as a YBSC minor is voluntary and shall 
occur only with the consent of the legally responsible 
person. 

(c) All certified members of the Willie M. class, eligible 
for services, shall be designated Youth Behavioral Services 
Clients. 

(1) If a legally responsible person or an emancipated 
minor refuses services after the minor has been 
determined eligible as a YBSC. the area program 
or contract agency shall make periodic contacts 
with the legally responsible person or the emanci- 
pated minor to encourage consent for receipt of 
services. 

(2) The area program or contract agency shall main- 
tain a record of its efforts to obtain consent. Such 
efforts shall include, but not be limited to phone 
calls, registered letters, home visits, contact with 
the family through individuals or agencies having 
a relationship with the minor and legally responsi- 
ble person. 

(3) Where services are refused, the agencies shall 
obtain clinical input to determine whether refusal 
of consent constitutes medical neglect of the 
minor's treatment needs and, if so. take steps with 
respect to this neglect. 

(4) Refusal of consent for eligibility determination or 
for services shall cause an applicant or client to 
be placed in "inactive" status until such time as 



consent is obtained, or until the child is 18 years 
of age. 

(d) The legally responsible person and the area program 
or contract agency shall notify the Division of the occur- 
rence of any circumstance which effects the eligibility of a 
YBSC or applicant to receive services. The Division shall 
be notified if: 

(1) the legally responsible person or emancipated 
minor withdraws consent for determination of 
eligibility or refuses services; 

(2) the client is admitted to an adult corrections 
facility operated by the North Carolina Depart- 
ment of Corrections: 

(3) the legally responsible person's State of residence 
changes: or 

(4) the client dies. 

(e) A child under the age of 18 who is an applicant for 
eligibility as a YBSC or who has been determined by the 
Department of Human Resources to meet the eligibility 
criteria for being a Willie M. class member or a YBSC is 
ineligible for services if any one of the following circum- 
stances exists: 

(1) The child's legally responsible person is not a 
legal resident of North Carolina; or 

(2) The child has been confined under a criminal 
sentence in a facility operated by the North 
Carolina Department of Corrections. 

If either of the circumstances in this Paragraph changes 
before the child is 18 years of age, the child shall again be 
eligible for services until age 18. as set forth in these Rules. 

£f) The death of a Willie M. class member or YBSC ends 
the minor's eligibility for services. 

(g) Fees for services provided pursuant to these Rules, 
with the exception of education services, will be charged 
and collected consistent with the provisions of G.S. 122C- 
146. 

Authority G.S. 122C-112; 122C-146. 

.0204 ELIGIBILITY CRITERIA 

In order to be designated a Youth Behavioral Services 
Client, a minor shall have an application filed in accordance 
with these Rules and: 

(1) suffer from emotional, mental or neurological 
handicaps as set forth in Rule .0205 of this Sec- 
tion; 

(2) the minor's handicap shall be accompanied by 
behavior that is characterized as violent or assaul- 
tive, as defined in Rule .0206 of this Section; 

(3) have met at least one of the following conditions: 
(a) is institutionalized or has been institutional- 
ized pursuant to G.S. 122C. Article 5; 
has been referred to an area mental health. 



£b} has 



developmental disability and substance 
abuse director pursuant to G.S. 7A-647(3) 
for whom residential treatment or place- 
ment is recommended; 



11:14 



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October 15, 1996 



1129 



PROPOSED RULES 



(c) is in or has been placed in residential pro- 
grams as a condition of probation pursuant 
to G.S. 7A-649(1); 

(d) is in or has been ordered to a professional 
residential treatment program pursuant to 
G.S. 7A-649(6); or 

(e) is in or has been committed to the Di\'ision 
of Youth Services pursuant to G.S. 7A- 
649(10); and 

(4) is a minor for whom the State has not provided 
appropriate treatment and educational programs as 
defined in Rule .0207 of this Section. 

Authority G.S. 7A-647(3); 7A-649(]), (6), (10); 122C-3: 
122C-112: 122C, Article 5. 

.0205 EMOTIONAL, MENTAL OR 

NTLTiOLOGICAL HANT)ICAP DEFINED 

To meet the requirement of suffering from emotional, 
mental or neurological handicaps, a minor shall: 

( 1) have one or more conditions so diagnosed accord- 
ing to International Classification of Diseases -9. 
American Association of Mental Deficiency, or 
Diagnostic and Statistical Manual of Mental 
Disorders-IV systems of categorization (excep- 
tions to this criterion shall include those disorders 
in the DSM-IV or later versions, to which no 
logical or reasonable connection can be made 
bet\>,een that disorder and accompanying assaul- 
tive or violent behasior: e.g.. nicotine-related 
disorders. In addition. V codes, u ith no accom- 
panying Axis I-III diagnoses, do not constitute an 
emotional, mental or neurological handicap. Such 
exceptions would apply only when there is no 
other emotional, mental or neurological handicap); 
or 
meet the criteria set bv the North Carolina Board 



12] 



of Education for handicapping conditions; or 
meet the statutory definition of mental illness for 
a minor in G.S. 122C-3. 



Authority G.S. 122C-3: 122C-112; 122C-194. 

.0206 VIOLENT OR ASSAULTIVE BEHAVIOR 
DEFINED 

(a) To meet the criterion of violent or assaultive behav- 
ior, there shall be evidence in the minor's recent history 
(within the 12 months prior to the application or request for 
re-review of eligibilit\') or current functioning of one or 
more of the following: 

( 1 ) ph\ sically attacks, with or 'A'ithout weapons 
against other persons or animals, or physical 
attacks resulting in propert\' damage; 

(2) phs'sically self-injurious behavior or serious 
suicidal attempts; 

(3) threatened attacks with a deadly weapon: 

(4) firesetting; or 



(5) predatory sexual behaviors, 
rb) In addition, the behaviors shall meet two or more of 
the following tests: 

( 1) the attack shall be sufficiently severe that substan- 
tial harm to persons did result or could result 
without intervention: 

(2) the beha\ior shall have occurred with sufficient 
frequency to be considered a pattern of response 
(more than three times o\er a period of six 
months); 

(3) is extreme or out of proportion to the provoca- 
tion, if any, or is not an age-appropriate reaction; 

(4) was sufficiently disruptive to lead to extrusion 
from or refusal for admittance to school, job, 
recreational setting, or treatment program: 

(5) resulted in severe measures of control, e.g.. 
seclusion, restraints, or chemical controls; or 

(6) resulted in incarceration or institutionalization 
with the restrictive environment then "controlling" 
the behavior. 

Authority G.S. 122C-3: 122C-112; 122C-194. 

.0207 DETERMINATION THAT STATE HAS NOT 
PROVIDED APPROPRIATE TREATMENT 

(a) To meet the criterion that the State has not provided 
appropriate treatment, the application shall show evidence of 
one or more of the following conditions, in addition to 
meeting the other criteria outlined in Rule .0204 of this 
Section: 

( 1 ) The minor has a diagnosis and a prescribed need 
for treatment that has not been implemented; or 
the current treatment or education services are not 
based on assessments which reflect the child's 
essential needs. 

(2) The minor has an lEP that has not been imple- 
mented. 

(3) The current treatment or education program must 
use restrictive measures (e.g., seclusion, re- 
straints, questionably high doses of medication) 
that u'ould not be necessary with more staff, staff 
trained more specifically in relation to the minor's 
behavior, if the program offered more security, or 
if needed service supports were available. 

(4) Multiple residential treatment placements (more 
than three in a one- year period), which are 
disrupted due to the inability of the placement to 
proN'ide supports or services which are sufficient 
or intensive enough to address the child's treat- 
ment needs. 

(5) The current treatment plan could be implemented 
as effecti\'ely or more effecti\'ely in a less restric- 
tive setting, if one existed and jf an array of 
sufficient support sers'ices existed, which would 
still address the child and community's needs for 
safety. Examples of a "less restricti\'e setting." 
include; 



1130 



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October 15, 1996 



11:14 



PROPOSED RULES 



(A) a setting that allows the minor more mobil- 
ity, more exchange with peers, family or 
community outside of the treatment setting, 
and which still addresses the child and 
community's needs for safety; 

(B) a smaller, more home-like setting or a 
more normalized environment; and 

(C) the minor's own home. 

£b) In addition to meeting at least one of five conditions 
listed in this Rule, there must be evidence that the child's 
treatment and education needs are not or could not be met 
through existing and readily available services and supports 
which the child can access, or to which the child is entitled 
from any source. 

£c) If a child is denied eligibility for services based on 
the determination that needs can be met through existing 
services which are not currently being provided, the area 
program, contract agency or Division shall ensure the 
provision of such services. 

(d) For minors who are determined ineligible due to a 
finding that the current services are appropriate to their 
needs, evidence of changes in services or in treatment needs 
which cannot be met through available services shall be 
submitted to the Division for a re-review of eligibility. 

(e) In the case of known and identified future service 
needs which do not exist or are not available, a request for 
re-review of eligibility may be made ug to 90 days prior to 
discharge from or change in the current services. 

(f) The request for re-review of eligibility determination 
shall include information on the service needs of the 
applicant which cannot be met by the currently available 
services. 

Authority G.S. 122C-3; 122C-112; 122C-194. 

.0208 APPLICATION FOR DESIGNATION AS 

YOUTH BEHAVIORAL SERVICES CLIENT 

(a) Any individual may make application for a minor as 
a potential Youth Behavioral Services Client by submitting 
an application to either the area program or contract agency 
whose catchment area includes the minor's legal county of 
residence or to the Division. 

(b) Area programs shall not discourage the application of 
any minor and staff shall offer guidance in selecting the 
proper application procedures to follow. 

(c) The area program or contract agency shall collect and 
forward to the Division information needed to complete the 
application process, as outlined by the Division. 

(d) Consent from the legally responsible person shall 
accompany the application. 

£e) If someone other than the legally responsible person 
makes application for eligibility, and the application is 
submitted without consent from the legally responsible 
person, the Division shall notify the appropriate area mental 
health program or contract agency to obtain the required 
consent in order to make an eligibility determination. A 
formal eligibility determination cannot be made without 



consent from the legally responsible person. 
Authority G.S. 122C-3; 122C-112; 122C-194. 

.0209 DETERMINATION OF ELIGIBILITY 

(a) The Director, or his designee, shall determine the 
eligibility of an applicant for designation as a Youth Behav- 
ioral Services Client, according to the scope and criteria 
outlined in the Rules .0201. .0204. .0205. .0206. and .0207 
of this Section. 



(b) The Director, or his designee, shall develop applica- 
tion requirements for applicants, area programs and contract 
agencies, and other agencies which are consistent with the 
criteria outlined in the rules and are designed to facilitate the 
a ppropriate and timely identification of clients who meet 
Youth Behavioral Services Client eligibility criteria. 

(c) The Director, or his designee, shall ensure that 
information submitted for eligibility determination is 
reviewed by individuals with expertise and experience 
related to serving children with emotional, mental or 
neurological handicapping conditions accompanied by 
behavior characterized as assaultive or violent. 

(d) E)uring the submission process, all information shall 
be reviewed by Division staff who may request clarification 
or additional documentation to complete the application 
package. The Division will reimburse area programs or 
contract agencies for services required in order to collect 
needed information for application packages and, if neces- 
sary, for conducting evaluations the Division determines are 
needed in order to gather sufficient information to make an 
eligibility determination. 

(e) Within 30 days of obtaining a complete application 
package, a notice of the decision in response to the applica- 
tion shall be issued by the Division to the legally responsible 
person for the applicant, to the area director, the area Youth 
Behavioral Services Coordinator, the appropriate school 
system, and the referring individual or agency. Changes in 
circumstances of the applicant or legally responsible person 
or a request to obtain or review additional information in 
support of the application may result in a delay in the 30; 
day timeline. The Division shall notify the legally responsi- 
ble person of any extension in the timeline for review of the 
application and the reasons for the extension. Extensions of 
the 30-day timeline for such reasons do not constitute a 
failure by the Division to meet the requirements set forth in 
this Rule. 

(f) A separate formal letter containing the Notice of 
Decision shall be sent to the legally responsible person of 
the minor notifying them of the decision. 

Authority G.S. 122C-3; 122C-112; 122C-194. 

.0210 RE-REVIEW OF ELIGIBILITY DECISIONS 

(a) The Division shall retain the application package for 
each applicant determined to be not eligible until the 
applicant's eighteenth birthday, and may re-review (recon- 
sider) the decision upon request if there is reason to believe 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1131 



PROPOSED RULES 



the basis for the (2) The 



that the applicant's handicapping condition, behavior and/or 
service needs meet the criteria. A request for re-review 
shall by submitted to the Division by the legally responsible 
person or advocate, and shall be accompanied by arvy new 
information or information not previously submitted. 

(b) If additional information is needed in order to 
conduct a re-review, the Division shall request that informa- 
tion and notify the legalh' responsible person or advocate 
and in\oh'ed area mental health or contract agency of the 
information request and the reason for any delay in the re- 
review process. 

(c) Upon receipt, the application package and the new 
information shall be reviewed within 30 days to determine 
if the applicant is now eligible. All parties notified of the 
original decision shall be notified of the re-review decision. 

(d) The Dis'ision shall issue another Notice of Decision 
to a parent, or guardian when the re-review decision js 
made. 

£e} If the legally responsible person or advocate disagre-e 
with the determination of eligibility decision, either party 
ma\ request, in writing, that the Division conduct an 
Administrative Re-review of the original application package 
and resultant decision: 

(1) TTie request for an Administrative Re-review shall 
include a statement summarizing the basis for the 
request. 

(2) The Di\ision will re-review the original applica- 
tion, reconsider the earlier decision, and issue 
another eligibility decision within 30 days of 
receipt of the request for an Administrative Re- 
re\'iew. 

(3) If the minor, the legally responsible person, or 
advocate disagrees with the decision from the 
Administrative Re-review, either party may 
initiate a contested case hearing to resolve the 
dispute. 

Authority G.S. 122C-3: 122C'112: 122C-194. 

.0211 NEEDS ASSESSMENT 

(a) Each Youth Behavioral Services Client shall receive 
assessments and evaluations that are necessary for a thor- 
ough and accurate understanding of the minor's essential 
needs in the desired outcome domain areas: social, behav- 
ior, education, vocation, housing/residential, and health 
(including mental health). 

(b) Needs shall be identified without regard to service 
a\'ailability. 

(c) Needs m each of the six outcome areas set forth in 
Paragraph (a) of this Rule shall be addressed and prioritized 
within each domain as to their relative importance in the 
minor's life at the particular time. To the extent that needs 
must be prioritized, such prioritization shall relate to the 
timing of addressing needs rather than whether they should 
be addressed at all. 

(d) Factors in both assessing and determining needs shall 
include: 



(2) 



the minor's capabilities and potential; 
the minor's need for stability in personal relation- 
ships and the ability of caregivers (family and 
stafO to provide that stability; and 
(3) major risks to the minor's health, safety and 
integration with the community. 
(e) Clinical and other appropriate resources shall be used 
to produce timely, thorough and accurate diagnosis, evalua- 
tion and needs assessments, both prior to the development 
of the service plan and as an ongoing part of treatment and 
education. 

Authority G.S. 122C-3: 122C-112: 122C-194. 

.0212 SERVICE PLANNING. 

Each Youth Behavioral Ser\'ices Client shall have an 
individualized treatment/habilitation plan (T/HP) developed 
within 60 days of notice of eligibility as a Youth Behavioral 
Services Client. If identified as eligible for Exceptional 
Children's education services, the child shall also have an 
Individual Education Plan (lEP). 

( 1 ) Legally Responsible Person and client participa- 
tion in development of the service plans is ex- 
pected and shall be facilitated. 
The habilitation plan shall address the client's 



essential needs and reflect the prioritization 
required as a result of liming and developmental 
progress. 

(3) Goals, objectives and strategies shall address 
movement toward a transition into adulthood that 
is consistent with the client's capabilities and 
potential and the reasonably expected life and 
problems the client will encounter as an adult. 

(4) TTie service plans shall provide each client with 
the most normal, least restrictive living arrange- 
ments and conditions appropriate to individual 
needs. 

(5) The service plans shall address the client's need 
for safety for both self and others. TTie need for 
least restrictive environment and the need to 
minimize the possibility of harm to the client and 
to society are factors to be considered in deter- 
mining the le\'el of restriction for the client's 
treatment and education setting. 

(6) The service plans shall include: 

(a) Goals, or global end results and objectives, 
or intermediate results, to be accomplished 
in order to achieve the identified goal. 

£b} Strategies and individual assignments for 
implementation, facilitation, and responsi- 
bility for each strategy (e.g., minor, legally 
responsible person, agency representative, 
etc.). 

(c) Measures of progress to be used for strate- 
gies directed toward the long-term desired 
outcomes for the client. 

(d) Risks (e.g.. behavioral regression, medical 



1132 



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October 15, 1996 



11:14 



PROPOSED RULES 



deterioration) that threaten success of the 
plan, and supports and services to antici- 
pate and address such risks. 
(e) Strategies for addressing crises. 

(7) Service plans shall be revised as needed, but at 
least annually, based on changes in the child, 
including progress or lack of progress, significant 
life events, deterioration, and criminal behavior. 

(8) As early as needed, but no later than age 16. a 
new plan will be developed that includes specific 
goals, objectives and strategies related to transi- 
tion to adulthood. 

Authority G.S. 122C-3; lllC-lll; 122C-194. 

.0213 PROVISION OF SERVICES 

(a) Services shall be provided within 60 days of notice of 
eligibility as a Youth Behavioral Services Client to address 
the client's essential needs, with sufficient intensity and 
continuity to meet those needs. 

(b) Services are to be directly related to the goals and 
objectives identified in the habilitation plan. 

(c) To the extent necessary for the individual client, 
appropriate resources (neighborhood, extended family, 
church and other community resources) shall be used to 
facilitate integration into the client's existing or anticipated 
adult community. 

(d) If needed placements and services do not exist or are 
not available, they shall be developed and implemented 
within a reasonable period. 

(1) The area program or contract agency shall take 
the necessary steps to develop and implement the 
needed services and shall notify the Division and 
seek necessary assistance for developing needed 
services. 

(2) The minor's T/HP shall include services and 
supports which will be provided in the interim, 
until appropriate services are available. 

(A) In addition, the T/HP shall include 
timelines by which appropriate services will 
be developed and provided. 

(B) Prior to development and implementation 
of needed services, a Youth Behavioral 
Services Client shall receive, in the in- 
terim, services which meet as nearly as 
possible all essential needs. 

(e) Services for a Youth Behavioral Services Client may 
continue for a reasonable period of time beyond the client's 
eighteenth birthday if the individual: 

(1) continues to be in need of such treatment and will 
benefit from continuing placement or involvement 
in services which the client is receiving treatment 
on his/her eighteenth birthday; and 

(2) voluntarily agrees to continue treatment in those 
services in a manner consistent with state law or 
is confined pursuant to applicable state law. 

If the conditions in this Paragraph are met, services may 



continue beyond the client's eighteenth birthday for six 
months or until the end of the current fiscal year, whichever 
is longer. If. after turning eighteen and before the extension 
period has been exhausted, the client decides to terminate or 
ceases participation in services, the client's eligibility for 
continued services under these rules ends at that time. 

(f) A determination of eligibility as a Youth Behavioral 
Services Client does not preclude or prevent access to 
services to which the minor would otherwise be entitled. 

Authority G.S. 122C-3; 122C-112; 122C-194. 

.0214 AREA PROGRAM REQUIREMENfTS. 

(a) Area programs or contract agencies shall, directly or 
through contract agencies, provide services for Youth 
Behavioral Services Clients whose legal county of residence 
is located in their catchment area. 

(b) Each area program or contract agency shall establish 
procedures for providing services to Youth Behavioral 
Services Clients, including designation of an area program 
Youth Behavioral Services Client Coordinator, submission 
of required information and reports to the Division, and 
information-gathering and preparation of needed evaluations 
for a pplications of potential Youth Behavioral Services 
Clients. 

(c) Each area program or contract agency that has a 
Youth Behavioral Services Client shall establish and main- 
tain accreditation for provision of services to Youth Behav- 
ioral Services Clients pursuant to 10 NCAC 14V .0600 
Accreditation of Area Programs and Services, contained in 
Rules for Mental Health, Developmental Disabilities and 
Substance Abuse Facilities and Services. Division publica- 
tion APSM 30-1. 

(d) Each area program or contract agency shall comply 
with budgeting, fiscal, individual service planning, individ- 
ual assessment and outcome evaluation, and service report- 
ing requirements established by the Division. 

(e) Each area program or contract agency shall assist in 
the collection of or development of information needed to 
process applications for potential Youth Behavioral Services 
Clients. 

(D Each area program or contract agency shall develop 
individualized treatment/habi 1 i tation plans (T/HPs) according 
to Division guidelines, and shall provide requested informa- 
tion regarding annual monitoring of service appropriateness 
and service outcomes for all Youth Behavioral Services 
Clients. 

Authority G.S. 122C-3; 122C-1I2; 122C-194. 

.0215 DIVISION REQUIREMENTS 

The Division shall: 
(1) establish and promulgate requirements for the 
provision of services to Youth Behavioral Services 
Clients, including evaluation, assessment, service 
planning, and the collection of information on 
outcome measures for all individual Youth Behav- 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1133 



PROPOSED RULES 



(6) 

m 



ioral Services Clients. 

(2) regularly monitor provision of services to individ- 
ual Youth Behavioral Services Clients, including 
periodic sample reviews of the individual treat- 
ment/habilitation plans of Youth Behavioral 
Services Clients. 

(3) monitor, at least on an annual basis, a sample of 
Youth Behavioral Services Clients and make 
determinations as to whether thev are receiving 
needed services. 

(4) address service deficiencies for individuals and 
groups of Youth Behavioral Services Clients and 
take steps necessary to meet the client's needs, as 
those deficiencies are identified through special as 
well as ongoing monitoring activities. 

(5) ensure that there is a review of a sample of its 
determinations as to appropriate services for 
individual Youth Behavioral Services Clients and 
of a sample of its assessments of local systems of 
services conducted by an independent entity on at 
least a biannual basis. 

establish and maintain statewide requirements and 
policies for the provision of services to Youth 
Behavioral Services Clients, 
together with the Department of Public Instruc- 
tion, shall monitor on an annual basis the provi- 
sion of services by local programs, including area 
mental health programs, local school systems, and 
other local agencies or contract agencies which 
have responsibilities for services to Youth Behav- 
ioral Services Clients. 

shall provide funding to area programs and con- 
tract agencies for Youth Behavioral Services 
Clients and for information-gathering by area 
programs or contract agencies as part of the 
application process for Youth Behavioral Services 
Clients, as made available from the General 
Assembly and through federal sources: 

(a) these fiinds shall be expended according to 
budgeting and reimbursement requirements 
and policies established by the Division and 
according to applicable state laws. 

(b) funds appropriated by the General Assem- 
bly for Youth Behavioral Services Clients 
shall be expended only for programs serv- 
ing Youth Behavioral Services Clients, 
including evaluations of applicants. 

(9) reallocate these funds among services to Youth 
Behavioral Services Clients during the year as it 
deems advisable in order to use the funds effi- 
ciently in providing appropriate services to Youth 
Behavioral Ser\'ices Clients. 
(10) continue to implement its prospective unit cost 
reimbursement system and shall ensure that unit 
cost rates reflect reasonable costs. The Division 
shall take steps to reduce and/or cap rates to 
programs which are significantly higher than those 



£8} 



rates paid to other programs for the same service. 
Any exceptions to this requirement shall be 
approved by the Director and shall be reported in 
the Department's annual report. 
(1 1) notwithstanding any other provision of law, if the 
Division determines that a local program is not 
providing appropriate services to Youth Behav- 
ioral Services Clients, the Division shall ensure 
the provision of these services through contracts 
with public or private agencies or by direct 
operation by the Division of such services. 

Authority G.S. 122C-3; 122C-112; 122C-194. 

.0216 PRIOR NOTICE OF DECISION 

(a) Notice of decision shall be given to a minor's legally 
responsible person and advocate whenever the Division, an 
area program or other service-providing agency initiates or 
proposes to change; or after request by the minor's legally 
responsible person or advocate refuses to initiate or change: 
(1) the eligibility status of a Youth Behavioral Ser- 
vices Client or applicant: 
a client's needs assessment: 
a client's T/HP; or 



m 
m 

(4] 



a client's services or placement, 
fb) Timing: Notice of decision shall be provided within 
a reasonable time prior to the intended action, but not later 
than ten days prior to the effective date of the proposed 
action for eligible Youth Behavioral Services Clients. 
Notice of decision for an eligibility determination decision 
shall be provided when the decision is made by the Divi- 
sion. The minor's legally responsible person or advocate 
has the right to appeal the eligibility decision from this point 
ill time. 

(c) Means of Notice: The notice of decision shall be in 
writing. The area program, contract agency or Division 
shall document that the notice has been sent to the legally 
responsible persons or advocate. 

(d) Content: The notice of decision, at a minimum, shall 
state the name of the client or applicant, the action re- 
quested, the intended action or refusal to act, and the 
effective date of the proposed action or refusal to act. In 
addition, the notice shall: 

(1) explain why the agency proposes to act or refuses 
to act; 

(2) describe the evaluation or assessment procedures, 
tests, records or reports that the agency uses as a 
basis for the proposed action or refusal; 
describe any other factors relevant to the agency's 
decision; 



(3) 
14) 



describe amy options that agency considered, and 
why those options were rejected, if applicable; 
and 
(5) provide a full explanation of the client's proce- 
dural safeguards with respect to the agency's 
decision, including: 
(A) the right to voluntary mediation, how to 



1134 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



PROPOSED RULES 



(Bl 



£Cl 






request Ui and to whom to make the re- 
quest: 

the right to an impartial administrative 
review under contested case hearing proce- 
dures, the grounds specified in G.S. 122C- 
195 for obtaining administrative review of 
proposed decisions, the procedure for 
initiating administrative review, and the 
time limits in which to initiate administra- 
tive review; 

the right to review the decision and the 
opportunity to examine records related to 
the decision; 

the right to seek an independent evaluation; 
the right to be represented by counsel; and 
in the case of a determination of 
noneligibility, the right to submit additional 
information and request an administrative 
re -review of eligibility before proceeding 
with a contested case hearing. 



Authority G.S. 122C-3; 122C-112: 122C-194. 

.0217 MEDIATION 

(a) The legally responsible person or advocate for a 
Youth Behavioral Services Client dissatisfied with a decision 
may request a voluntary mediation of disputes as described 
in G.S. 122C-197 by making such a request, formally or 
informally, to the director of the involved area authority, to 
the director of the agency proposing the decision, or to the 
designee of either agency as identified iri the prior notice or 
notice. 

£b) Upon receiving a request for mediation, the director, 
or designee, of the agency proposing the decision shall 
schedule and conduct, within ten working days of the 
mediation request, a mediation with the individuals desig- 
nated in G.S. 122C-197. The meeting shall be informal and 
nonadversarial. No witnesses shall be placed under oath or 
cross-examined. 

(c) Requests for mediation of disputes regarding eligibil- 
ity decisions shall be made directly to the Division. 



Authority G.S. 122C-3; 122C-112; 122C-194. 

.0218 CONTESTED CASE HEARINGS 

(a) Tlie legally responsible person or advocate may 
obtain review of proposed decisions on the grounds and in 
the manner specified in G.S. 122C-195. 

(b) Any agency served with a petition seeking such 
review shall advise the Division and the appropriate area 
authority and furnish each with a copy of the petition if the 
Division or the area authority have not been named as 
parties. 

(c) A local or state agency may obtain review as pro- 
vided by these rules and applicable state laws if a legally 
responsible person or advocate refuses to consent to the 
evaluation of the minor or to the provision of services for a 



Youth Behavioral Services Client. 

(d) A decision made pursuant to a contested case hearing 
shall be in writing and shall be provided to the legally 
responsible person or advocate, area program/contract 
agency director, and Division Director. 

(e) Decisions pursuant to a contested case hearing shall 
be made within 45 days of filing the petition unless a 
specific extension is granted or the period is shortened by 
the Administrative Law Judge for good cause or in an 
emergency situation. 

(f) The local or state agency shall inform the legally 
responsible person or advocate of the right to representation 
by counsel and of any free or low-cost legal or other 
relevant services available in the area. 

(g) During the pendency of any administrative or judicial 
proceeding regarding a dispute governed by these Rules, 
unless the local or state agency and the legally responsible 
person agree otherwise, the child involved in the dispute 
must remain in present services. 

Authority G.S. 122C-3; 122C-112; 122C-194. 

.0219 ADMINISTRATIVE REVIEW BY REVIEW 
OFFICER 

(a) Appeal to Review Officer: Any party to an adminis- 
trative review proceeding may appeal the decision of the 
administrative law judge to an impartial Review Officer as 
specified in G.S. 122C-199. Notice of the appeal shall be 
directed to the Division Director. 

(h) Review Officer Pool: The Director shall establish a 
pool of individuals approved to serve as Review Officers for 
appeals of Youth Behavioral Services Client decisions. The 
list of approved Review Officers in the pool and their 
qualifications shall be made available on request. Review 
Officers shall meet the following qualifications: 

(1) Review Officers shall be professionals in the 
fields of education, mental health, social services, 
law, or medicine, or shall be qualified by relevant 
education and experience, and shall have back- 
ground in or knowledge about the eligibility 
criteria for Youth Behavioral Services Clients. 

(2) Review Officers shall have experience in. or 
receive training in, the conduct of administrative 
hearings. 

(3) Review Officers may not be employees or offi- 
cials of either the Department of Human Re- 
sources, the Department of Public Instruction, the 
Office of the Governor, or of any agency in- 
volved in the care of the minor who is the subject 
of the case. A person is not disqualified as an 
employee merely because he or she is paid by the 
agency to serve as a Review Officer. 

(4) Review Officers shall disqualify themselves in 
cases of personal or professional conflicts of 
interest or in cases where substantial portions of 
their income are derived through contractual 
arrangements with an involved agency. 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1135 



PROPOSED RULES 



(c) Conduct of Review: 
( 1) Upon selection of a Review Officer, the agency 
shall forward the hearing record to the Review 
Officer. 



(2) The Review Officer shall review the entire hear- 



£B] 



lO 



ing record and determine whether: 

(A) the procedures at the contested case hearing 
were consistent with the requirements of 
the Administrative Procedures Act; 
to conduct an additional hearing in accor- 
dance w ith the procedures set forth in this 
Paragraph; and 

in the discretion of the hearing officer, to 
afford the parties oral or written argument. 

(3) If the Review Officer determines that new evi- 
dence would be material to the issues, not merely 
cumulative, and could not reasonably have been 
presented at the contested case hearing, he shall 
conduct a hearing to receive additional evidence^ 

(4) If the Review Officer determines to afford the 
parties oral or written argument, he shall notify 
them of the timing and parameters of the argu- 
ment. The provisions of G.S. 150B with respect 
to the reception of evidence shall apply. 
Upon completion of review, the Review Officer 
will issue a written decision, including findings of 
fact and conclusions of law. Such decision shall 
be issues as soon as practical but not more than 
45 days of the institution of the appeal provided in 
Paragraph (a) of this Rule. The Review Officer 
will serve a copy of the decision on each party, 
with copies to the attorneys of record, and shall 
include with it the notice required by G.S. 122C- 
199 informing the parties of their right to file a 
civil action and the 30-day limitation for filing 
such an action. 



(5] 



Auihorin- G.S. 122C-3: 122C-112; 122C-194. 



TITLE 12 - DEPARTMENT OF JUSTICE 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the NC Alarms Systems Licensing 
Board intends to amend rule cited as 12 NCAC 11 .0202. 
Notice of Rule-making Proceedings was published in the 
Register on March 15, 1996. 

Proposed Effective Date: April 1 , 1997 

A Public Hearing will be conducted at 2:00 p.m. on 
November 4, 1996 at the SB! Complex. Building 12, 3320 
Old Gamer Road, Raleigh, NC 27626. 

Reason for Proposed Action: The Board wi.thes to amend 
this- Rule to delete paragraph (c) in its entirety and require 
those engaged exclusively in monitoring and responding to 



alarms to hold a full alarm systems business license as set 
forth in the statute. 

Comment Procedures: Comments may be presented orally 
or in writing at the hearing. Other written comments 
concerning this rule-making activity must be submitted no 
later than November 14, 1996 to: W.A. Hoggard, lU, 
Administrator, NC Private Protective Ser\'ices Board, 3320 
Old Garner Road. Raleigh, NC 27626. 

Fiscal Note: 77i;.s- Rule does not affect the expenditures or 
revenues of state or local government funds. This Rule does 
not have a .substantial economic impact of at least five 
million dollars ($5,000,000) in a 12-month period. 

CHAPTER 11 - N.C. ALARM SYSTEMS 
LICENSING BOARD 

SECTION .0200 - PROVISIONS FOR LICENSEES 

.0202 EXPERIENCE REQUIREMENTS FOR 
LICENSE 

(a) Applicants for an alarm system license must meet the 
following minimum requirements which are additional to 
those specified in G.S. 74D: 

(1) Establish to the Board's satisfaction two year's 
experience within the past five years in alarm 
systems installation, service, or alarm systems 
business management; or 

(2) Successfully pass an oral or written examination 
deemed by the Board to measure an individual's 
knowledge and competence in the alarm systems 
business. 

(b) Any applicant who takes the examination adminis- 
tered by the Board under 12 NCAC II .0202(a)(2) and who 
does not successfully complete said examination after two 
attempts, must wait six months before being allowed to take 
the examination again. 

fe) — Applicants engaged exclusively in monitoring or 
responding to alarms may b e issu e d a limit e d lic e ns e which 
authoriz e s th e p e rformanc e of monitoring and re s ponding 
functions only. — Applicants for such a limited license shall 
not be required to moot the oxporionco requirements of 12 
NCAC 11 .0202(a). 

Authority- G.S. 74D-5. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT, 
HEALTH, AND NATURAL RESOURCES 

Notice is hereby given in accordance with G.S. 
I50B-21.2 that the Environmental Management Com- 
mission intends to adopt rules cited as 15A NCAC 2B .0231 
- .0236. Notice of Rule-making Proceedings was published 
in the Register on April 15, 1996. 



1136 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



PROPOSED RULES 



Proposed Effective Date: August 1, 1998 

A Public Hearing will be conducted at 7:00 p.m. on 
November 12, 1996 in Raleigh, at the State Highway 
Building; November 14, 1996, in New Bern, at the Craven 
County Courthouse; November 19, 1996, in Goldsboro, at 
the High School Auditorium, and November 21, 1996, in 
Kinston, at the J.H. Sampson Elementary School Audito- 



Reason for Proposed Action: This Notice of Text and 
Hearing announces a new set of public hearings to be held 
on the proposed Nutrient Sensitive Waters Management 
Strategy for the Neuse River Basin. The strategy and 
original set of public hearings were noticed in the North 
Carolina Register on August 15, 1996 (Volume 11:10, pages 
824-838). Public hearings scheduled for early September 
1996 were canceled due to damage from Hurricane Fran. 
This notice contains the new dates and locations for the 
rescheduled public hearings. No changes have been made 
to the proposed rules as a result of rescheduling the public 
hearings. 

In 1988, the Environmental Management Commission (EMC) 
classified the entire Neuse River Basin as Nutrient Sensitive 
Waters (NSW). They adopted this classification due to 
nutrient-related water quality problems in the freshwater 
sections between Kinston and New Bern. At that time, the 
EMC adopted a Nutrient Management Strategy to improve 
water quality in the river. This initial NSW strategy ad- 
dressed phosphorus reductions through point source controls 
and nitrogen from the voluntary implementation of agricul- 
tural best management practices (BMPs). The strategy was 
successful and phosphorus loading has declined due to these 
point source controls and the phosphate detergent ban. 

Even with the management measures adopted in the initial 
NSW strategy, water quality problems in the lower Neuse 
River continue, especially below New Bern. For example, 
during July, September, and October 1995, widespread fish 
kills occurred in the Neuse River, mainly from New Bern to 
Minnesott Beach. Millions offish were killed. The water 
was lacking oxygen near the surface and algal blooms were 
common. Because of these continued water quality prob- 
lems, the EMC intends to revise the NSW strategy and to 
focus on nitrogen loading to the estuary. Rules are pro- 
posed for the following components: 

• Wastewater Discharge Requirements (15 A NCAC 2B 
.0231), 

• Illegal Discharges Management Plan (15A NCAC 2B 
.0232), 

• Stormwater Management (15A NCAC 2B .0233), 

• Animal Waste Management (15A NCAC 2B .0234),* 

• Buffers (15A NCAC 2B .0235), and 

• Nutrient Management (15A NCAC 2B .0236). 

• Two alternatives are being proposed for animal waste 
management. The EMC approved these two alternatives for 



public hearing before the 1996 North Carolina General 
Assembly adjourned. During the 1996 session, a bill 
(Senate Bill 1217) was ratified that establishes a permitting 
and inspection program for animal operations. The require- 
ments of SB 1217 will render the proposed rule alternatives 
for animal operations unnecessary. Any animal waste 
management rules that the EMC adopts as part of the NSW 
strategy for the Neuse River will reflect the requirements of 
Senate Bill 1217. Briefly, SB 1217 will require a permitting 
program using general and individual permits for animal 
operations based on size of operation. 

Comment Procedures: The purpose of the announcement 
is to encourage those interested in this proposal to provide 
comments. You may submit comments, statements , data and 
other information in writing prior to, during or after the 
hearing but no later than 12/16/96. You may also present 
verbal comments at the hearing. The Hearing Officer may 
limit the length of time that you speak so that all those who 
wish to speak may have an opportunity to do so. We 
encourage you to submit written comments. It is very 
important that all interested and potentially affected persons 
or parties make their views known to the Environmental 
Management Commission (EMC) whether in favor of or 
opposed to any and all provisions of the proposal being 
noticed. If opposed to any or all provisions of the proposal 
we encourage you to offer appropriate alternative proposals. 
The EMC may not adopt a rule that differs substantially 
from the text of the proposed rule published in the North 
Carolina Register unless the EMC publishes the text of the 
proposed different rule and accepts comments on the new 
text. (See 150B-2 1.2(g). Written comments may be submit- 
ted to: David Harding, DEHNR/Division of Water Quality, 
POB0.X 29535, Raleigh, NC 27626-0535, (919) 733-5083, 
extension 569. Questions concerning proposed requirements 
for point source dischargers may be directed to Coleen 
Sullins at (919) 733-5083, ext. 550 and questions concerning 
proposed nonpoint source requirements to David Harding at 
(919) 733-5083, ext. 569. 

Fiscal Note: ISA NCAC 28 .0231 - This Rule does affect 
the expenditures or revenues of state and local government 
funds. This Rule does have a substantial economic impact 
of at least five million dollars ($5,000,000) in a 12-month 
period. 

ISA NCAC 28 .0232 - .0233 - These Rules do affect the 
expenditures or revenues of local government funds. 
ISA NCAC 28 .0236 - This Rule does affect the expendi- 
tures or revenues of local government funds. 

CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 

SUBCHAPTER 2B - SURFACE WATER 
AND WETLAND STANDARDS 

SECTION .0200 - CLASSinCATIONS AND WATER 
QUALITY STANDARDS APPLICABLE TO 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1137 



PROPOSED RULES 



SURFACE WATERS ANfD WETLANDS OF 
NORTH CAROLINA 

.0231 NEUSE RIVER BASIN - NUTRIENT 

SENSITIVE WATERS MANAGEMENT 
STRATEGY: WASTEWATER DISCHARGE 
REQUIREMENTS 

The Environmental Management Commission hereby 
estabhshes the goal of reducing the average annual load of 
nitrogen delivered to the Neuse River Estuary from point 
and nonpoint sources by a minimum of 30 percent of the 
average annual load for the period 1991 through 1995 by the 
year 2001. Furthermore, the Commission shall develop and 
adopt a plan to attempt to achieve the 30 percent reduction 
with the goal of demonstrating incremental progress each 
year. Tlie Commission shall quantify progress toward the 
30 percent reduction goal by assigning appropriate credit for 
reductions in point and nonpoint source pollution achieved 
through mandatory and voluntary measures. The following 
management strategy applies to the entire Neuse River Basin 
pursuant to the Nutrient Sensitive Waters ("NSW) classifica- 
tion, 15A NCAC 2B .0223. The management requirements 
for the Neuse River Basin are specified in Rules .0231, 
.0232, .0233. .0234, .0235 and .0236 of this Section. The 
following is the wastewater discharge management strategy 
for the Neuse River Basin: 

(1) All new and expanding dischargers will be re- 
quired to document that all practical alternatives 
to surface waters discharge were employed pursu- 
ant to 15A NCAC 2B .0201(c)(1). 

(2) All wastewater dischargers greater than or equal 
to 0^ MGD permitted flow regardless of current 
loading levels are required to evaluate and opti- 
mize the operation of their facilities in order to 
reduce nutrient loadings. One year after the 
effective date of this Rule, a report shall be 
submitted to the Division documenting the ef- 
forts/level of reductions achieved. 

(3) No new domestic wastewater discharges to sur- 
face waters of less than 0.5 MGD shall be permit- 
ted. Proposed domestic wastewater dischargers to 
surface waters that request a permit for 0.5 MGD 
or greater shall be required to justify flows based 
on full build out of the site. No phasing of less 
than 0.5 MGD will be allowed for construction of 
the wastewater treatment plants. Existing munici- 
pal dischargers shall be exempt from this Sub- 
Item after it is shown that no alternative to dis- 
charge exists pursuant to 15A NCAC 2B 
.0201(c)(1). Flows permitted by February \^ 
1996 are also not affected. 

(4) All dischargers within the basin below Falls Lake 
Dam will have the option of forming a coalition 
(hereafter referred to as the "Association") to 
implement nutrient reduction through a nutrient 
trading program. 

(a) For dischargers that join the Association. 



£bl 



an agreement will be drafted between the 
Division and the Association that includes, 
but is not limited to the following: mem- 
bership in Association, final loading targets 
based on a 30 percent reduction of calendar 
year 1995 nitrogen loads from the member- 
ship within five years of the effective date 
of this Rule, payment schedule for BMPs 
in years loading targets are not met, moni- 
toring requirements for Association mem- 
bers, and the credit life of BMPs. No 
Association exists, for the purposes of this 
Rule, until the Agreement is formally 
approved by the Commission. All existing 
Association dischargers that have a permit- 
ted flow greater than or equal to 0^ MGD 
and any new or expanding Association 
dischargers will receive a quarterly average 
total phosphorus limit of 2 mg/1 in their 
NPDES permits. 

For dischargers that do not join the Associ- 
ation and dischargers above Falls Lake 
Dam, the following requirements apply: 
(i) All existing municipal and domestic 
dischargers greater than or equal to 
0.5 MGD below Falls Lake Dam 
must meet a monthly average total 
nitrogen limit of 6 mg/1 within five 
years from the effective date of this 
Rule. TTiese facilities must meet a 
quarterly average total phosphorus 
limit of 2 mg/1. More stringent 
limits may apply to protect localized 
areas, 
(ii) All existing facilities above Falls 
Lake Dam with permitted flows 
greater than or equal to 0.05 MGD 
will be required to meet a quarterly 
average total phosphorus limit of 2 
mg/1. More stringent limits may 
apply to protect localized areas, 
(iii) All proposed new industrial and new 
and expanding domestic or municipal 
wastewater dischargers, where dis- 
charge is the only environmentally 
and economically feasible option, 
must comply with a monthly average 
total nitrogen limit of 6 mg/1 and a 
monthly average total phosphorus 
limit of 1 mg/1. More stringent 
limits may be given to protect local- 
ized areas, 
(iv) Existing industrial process 

wastewater dischargers below Falls 
Lake Dam and expanding industrial 
process wastewater dischargers 
within the basin will be evaluated by 



1138 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



PROPOSED RULES 



£cl 



the Division on an individualized 
basis. The industries within the 
management area will be required to 
control total nitrogen to the best 
available technology levels applica- 
ble to the specific wastestream. For 
the purposes of this strategy, the 
definition of best available technol- 
ogy will be required to be individu- 
ally developed for each facility. A 
report must be submitted and ap- 
proved by the Division of Water 
Quality within two years of the ef- 
fective date of this Rule which out- 
lines best available technology for 
their particular site. All existing 
industrial process wastewater dis- 
chargers below Falls Lake Dam with 
a permitted flow of 0^ MGD or 
greater will receive a quarterly aver- 
age total phosphorus limit of 2 mg/1. 
Expanding industrial process 
wastewater dischargers in the basin 
will receive a monthly average total 
phosphorus limit of lmg/1. More 
stringent limits may apply to protect 
localized areas. 

(v) All new and expanding wastewater 
dischargers will be required to offset 
their additional nutrient loads by 
funding nonpoint source control 
programs approved by the Division 
of Water Quality. Nitrogen and 
phosphorus loads shall be offset at 
the rate of 1 10 percent of the cost to 
implement BMPs designed to reduce 
that same loading created by the new 
or expanding discharge. 

If no Association of dischargers is formed. 

the following requirements will apply to 

dischargers in the Neuse River Basin: 
£i} All existing municipal and domestic 
dischargers greater than or equal to 
0.5 MGD below Falls Lake Dam 
must meet a monthly average total 
nitrogen limit of 6 mg/1 within five 
years from the effective date of this 
Rule. These facilities must meet a 
quarterly average total phosphorus 
limit of 2 mg/1. More stringent 
limits may apply to protect localized 
areas. 

(ii) All existing facilities above Falls 
Lake Dam with permitted flows 
greater than or equal to 0.05 MGD 
will be required to meet a quarterly 
average total phosphorus limit of 2 



mg/1. More stringent limits may 
apply to protect localized areas, 
(iii) All proposed new Industrial and new 
and expanding domestic or municipal 
wastewater dischargers, where dis- 
charge is the only environmentally 
and economically feasible option, 
must comply with a monthly average 
total nitrogen limit of 6 mg/1 and a 
monthly average total phosphorus 
limit of I mg/1. More stringent 
limits may be given to protect local- 
ized areas. 

industrial 



(iv) Existing 



£y} 



process 



wastewater dischargers below Falls 
Lake Dam and expanding industrial 
process wastewater dischargers 
within the basin will be evaluated by 
the Division on an individualized 
basis. The industries within the 
management area will be required to 
control total nitrogen to the best 
available technology levels applica- 
ble to the specific wastestream. For 
the purposes of this strategy, the 
definition of best available technol- 
ogy will be required to be individu- 
ally developed for each facility. A 
report must be submitted and ap- 
proved by the Division of Water 
Quality within two years of the ef- 
fective date of this Rule which out- 
lines best available technology for 
their particular site. All existing 
industrial process wastewater dis- 
chargers below Falls Lake Dam with 
a permitted flow of 0^ MGD or 
greater will receive a quarterly aver- 
age total phosphorus limit of 2 mg/1. 
Expanding industrial process 
wastewater dischargers in the basin 
will receive a monthly average total 
phosphorus limit of I mg/1. More 
stringent limits may apply to protect 
localized areas. 

All new and expanding wastewater 
dischargers will be required to offset 
their additional nutrient loads by 
funding nonpoint source control 
programs approved by the Division. 
Nitrogen and phosphorus loads shall 
be offset at the rate of 1 10 percent 
of the cost to implement BMPs de- 
signed to reduce that same loading 
created by the new or expanding 
discharge. 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1139 



PROPOSED RULES 



Authority G. S. 143-214.1; 143-215; 143-215.1; 143- 
215.3(aj(l). 

.0232 NEUSE RIVER BASEN - NUTRIENT 

SENSITIVE WATERS MANAGEMENT 
STRATEGY: ILLEGAL DISCHARGES 
MANAGEMENT PLAN 

The Environmental Management Commission hereby 
establishes the goal of reducing the average annual load of 
nitrogen delivered to the Neuse River Estuary from point 
and nonpoint sources by a minimum of 30 percent of the 
average annual load for the period 1991 through 1995 by the 
year 2001. Furthermore, the Commission shall develop and 
adopt a plan to attempt to achieve the 30 percent reduction 
with the goal of demonstrating incremental progress each 
year. The Commission shall quantify progress toward the 
30 percent reduction goal bv assigning appropriate credit for 
reductions in point and nonpoint source pollution achieved 
through mandatory and voluntary measures. The following 
management strategy applies to the entire Neuse River Basin 
pursuant to the Nutrient Sensitive Waters (NSW) classifica- 
tion. 15A NCAC 2B .0223. The management requirements 
for the Neuse River Basin are specified in Rules .0231. 
■0232. .0233. .0234. .0235 and .0236 of this Section. The 
following is the illegal discharges management strategy for 
the Neuse River Basin: 

All municipalities having a population of 5,000 or 
greater must begin the process of adopting a plan to 
address illegal discharges. Draft plans shall be 
submitted within tu'o years of the effective date of 
this Rule for approval by the Division. The plan 
must be implemented within five years after the 
effective date of this Rule. At the end of the five 
year time period local government must submit to the 
Division a report that addresses the local implementa- 
tion program's progress of removing existing illegal 
discharges, prevention of additional illegal discharges 
and an on-going inspection program of the storm 
drainage system to ensure prevention and continued 
removal of illegal discharges. 

Authoritx G. S. 143-214.1; 143.214.7; 143-215.1; 143- 
215.3(aj(l). 

.0233 NEUSE RIVER BASIN - NUTRIENT 

SENSITIVE WATERS MANAGEMENT 
STRATEGY: STORMWATER 
MANAGEMENT 

TTie Environmental Management Commission hereby 
establishes the goal of reducing the average annual load of 
nitrogen delivered to the Neuse River Estuary from point 
and nonpoint sources by a minimum of 30 percent of the 
average annual load for the period 1991 through 1995 by the 
year 2001. Furthermore, the Commission shall develop and 
adopt a plan to attempt to achieve the 30 percent reduction 
with the goal of demonstrating incremental progress each 
year. The Commission shall quantify progress toward the 



30 percent reduction goal by assigning appropriate credit for 
reductions in point and nonpoint source pollution achieved 
through mandatory and voluntary measures. The following 
management strate gy applies to the entire Neuse River Basin 
pursuant to the Nutrient Sensitive Waters (NSW) classifica- 
tion, 15A NCAC 2B.0223. The management requirements 
for the Neuse River Basin are specified in Rules .0231. 
.0232. .0233. .0234. .0235 and .0236 of this Section. The 
following is the stormwater management strategy for the 
Neuse River Basin: 
Option !_: 

( 1 ) Development activities which require a Sedimen- 
tation/Erosion Control Plan in accordance with 
G.S. 113A-57. except those development activities 
within the 20 coastal counties as defined in 15A 
NCAC 2H .1002(4). those areas affected by a 
WS-1. WS-II, WS-ITI. WS-IV. ORW or HQW 
classification since these areas already have 
requirements for stormwater management are 
required, at a minimum, to meet the following 
stormwater management requirements: 

(a) Low Density Option: Development activi- 
ties shall be allowed pursuant to 15.\ 
NCAC 2H .1003(d)(1) if the development 
has: 

(i) built-upon area of 12 percent or less 
or proposes no more than one single 
family residential unit per one acre; 
(ii) stormwater runoff transported pri- 
marily by vegetated conveyance: 
conveyance system shall not include 
a discrete stormwater collection 
system as defined in 15A NCAC 2H 
■ 1002(18). 

(b) High Density Option: Higher density devel- 
opments shall be allowed pursuant to 15A 
NCAC 2H .1003(d)(2) if stormwater con- 
trol systems meet the following criteria: 

(i) stormwater systems must be wet 
detention ponds or alternative storm- 
water management systems designed 
in accordance with 15A NCAC 2H 
.1008; 

(ii) control systems must be designed to 
control runoff from all surfaces gen- 
erated by one inch of rainfall. 

(2) Redevelopment is allowed if the rebuilding activ- 
ity does not have a net increase in built-upon area 
or provide equal or greater stormwater control 
than the previous development, except that there 
are no restrictions on existing single family 
residential redevelopment. Expansions to struc- 
tures classified as existing development must meet 
the requirements of this Rule; however, the built- 
upon surface area of the existing development is 
not required to be included in the built-upon area 
calculations. Expansions to structures other than 



1140 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



PROPOSED RULES 



£3} 



existing development must meet the buiit-upon 
area requirements of this Rule for the entire 
project site- 
Cluster development is allowed on a project-by- 
project basis as follows: 

(a) overall density of the project meets associ- 
ated density or stormwater control require- 
ments of this Rule; 

(b) buffers meet the minimum requirements of 
this Rule; 

(c) built-upon areas are designed and located to 
minimize stormwater runoff impact to the 
receiving waters, minimize concentrated 
stormwater flow, maximize the use of sheet 
flow through vegetated areas; and maxi- 
mize the flow length through vegetated 
areas; 



£el 
£fl 



{£} 



im 



areas of concentrated development are 
located in upland areas and, to the maxi- 
mum extent practical away from surface 
waters and drainage ways; 
remainder of tract to remain in vegetated or 
natural state; 

area in the vegetated or natural state may 
be conveyed to a property owners associa- 
tion; a local government for preservation as 
a park or greenway; a conservation organi- 
zation; or placed in a permanent conserva- 
tion or farmland preservation easement; 
a maintenance agreement for the vegetated 
or natural area shall be filed with the Reg- 
ister of Deeds; and 



cluster development that meets the a pplica- 
ble low density option requirements shall 
transport stormwater runoff from the devel- 
opment by vegetated conveyances to the 
maximum extent practicable- 
Option 2: 

(1) In order to address pollutants in stormwater 
runoff associated with development activities 
within the Neuse River Basin, a stormwater 
management program will be established within 
those areas of the Neuse River Basin that are not 
within the 20 coastal counties as defined in ISA 
NCAC 2H . 1002(4), and those areas affected by 
a WS-I. WS-II, WS-III. WS-IV, ORW or HOW 
classification as of the effective date of this Rule. 
Development activities within the 20 coastal 
counties as defined in ISA NCAC 2H .1002(4), 
and those areas affected by a WS-I, WS-II, WS- 
III, WS-IV. ORW or HOW classification are 
already administering a stormwater management 
program and are exempt from the following 
requirements. However, for areas within the 
Neuse River Basin that are not within the 20 
coastal county defined area or are not affected by 
a WS-I. WS-n. WS-III. WS-IV. ORW and HOW 



classification, then development activities are 
required to have a ppropriate stormwater manage- 
ment programs in place within three years follow- 
ing the effective date of this Rule. 
(2) A stormwater management program may be 
attained by meeting one of the following: 
(a) All local governments with land use juris- 
diction in those portions of the Neuse River 
Basin not otherwise subject to state storm- 
water management requirements have the 
option of participating collectively with the 
Division to review, develop, and establish 
a Neuse River Basin Stormwater Manage- 
ment Plan. This plan will establish the 
minimum requirements for the Stormwater 
Management Program which will include, 
but not be limited to: land use planning 
development density control measures, 
protection of sensitive surface waters and 
resources, use of stormwater management 
control devices, water quality educational 
programs and an implementation and com- 
pliance strategy. The final collective plan 
and management program must be ap- 
proved by the Commission within two 
years following the effective date of this 
Rule. Following the Commission's ap- 
proval of the Neuse River Basin Storm- 
water Management Plan, a local govern- 
ment may request that the Commission 
delegate authority to the local government 
to implement the plan; or 
If a local government fails to request that 
the Commission delegate authority to the 
local government to implement their por- 
tion of the collective plan within their 
jurisdiction then the Division will, at a 
minimum, implement the following storm- 
water management requirements: 
(i) Lx)w Density Option: Development 
activities shall be allowed pursuant 
to ISA NCAC 2H .1003(d)(n if the 
development has: 

(A) built-upon area of 24 percent 
or less or proposes no more 
than one single family resi- 
dential unit per one-half acre; 
stormwater runoff transported 
primarily by vegetated con- 
veyances; conveyance system 
shall not include a discrete 
stormwater collection system 
as defined in ISA NCAC 2H 
.1002(18). 



£b} 



m 



inl 



High Density Option: Higher density 
developments shall be allowed pur- 
suant to ISA NCAC 2H. 1003(d)(2) 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1141 



PROPOSED RULES 



if stormwater control systems meet 

the following criteria: 

(A) stormwater systems must be 
wet detention ponds or alter- 
native stormwater manage- 
ment systems designed in ac- 
cordance with 15A NCAC 2H 



,1008: 



(B) 



control systems must be de- 
signed to control runoff from 
all surfaces generated by one 
inch of rainfall. 

(3) Redevelopment is allowed if the rebuilding activ- 
ity does not have a net increase in built-upon area 
or provides equal or greater stormwater control 
than the previous development, except that there 
are no restrictions on existing single family 
residential redevelopment. Expansions to struc- 
tures classified as existing development must meet 
the requirements of Sub-Item (Dfb) of this Rule; 
however, the built-upon surface area of the exist- 
ing development is not required to be included in 
the built-upon area calculations. Expansions to 
structures other than existing development must 
meet the built-upon area requirements of Sub-Item 
(a)(ii) of this Rule for the entire project site. 

(4) Cluster development is allowed on a project-by- 
proiect basis as follows; 

(a) overall density of the project meets associ- 
ated density or stormwater control require- 
ments of this Section; 

buffers meet the minimum requirements of 
this Rule; 

built-upon areas are designated and located 
to minimize stormwater runoff impact to 
the receiving waters, minimize concentrated 
stormwater flow, maximize the use of sheet 
flow through vegetated areas; and maxi- 
mize the flow length through vegetated 
areas; 

(d) areas of concentrated development are 
located in upland areas and, to the maxi- 
mum extent practical, away from surface 
waters and drainways; 

(e) remainder of tract to remain in vegetated or 
natural state; 

(f) area in the vegetated or natural state may 
be conveyed to a property owners associa- 
tion; a local government for preservation as 
a park or green way; a conservation organi- 
zation; or placed in a permanent conserva- 
tion or farmland preservation easement; 

(g) a maintenance agreement for the vegetated 
or natural area shall be filed with the Reg- 
ister of Deeds; and 

(h) cluster development that meets the applica- 
ble low density option requirements shall 






transport stormwater runoff from the devel- 
opment by vegetated conveyances to the 
maximum extent practicable. 

Authority G. S. 143-214.1; 143-214.7; 143.215.1; 143- 

215.3(aj(l). 

.0234 NEUSE RIVER BASIN - NUTRIENT 

SENSITIVE WATERS MANAGEMENT 
STRATEGY: ANIMAL WASTE 
MANAGEMENT 

The Environmental Management Commission hereby 
establishes the goal of reducing the average annual load of 
nitrogen delivered to the Neuse River Estuary from point 
and nonpoint sources by a minimum of 30 percent of the 
average annual load for the period 1991 through 1995 by the 
year 2001. Furthermore, the Commission shall develop and 
adopt a plan to attempt to achieve the 30 percent reduction 
with the goal of demonstrating incremental progress each 
year. Tlie Commission shall quantify progress toward the 
30 percent reduction goal by assigning appropriate credit for 
reductions in point and nonpoint source pollution achieved 
through mandatory and voluntary measures. The following 
management strategy applies to the entire Neuse River Basin 
pursuant to the Nutrient Sensitive Waters (NSW) classifica- 
tion, 15A NCAC 2B .0223. The management requirements 
are specified in Rules .0231, .0232, .0233, .0234, .0235 
and .0236 of this Section. The following is the animal 
waste management strategy for the Neuse River Basin: 
Option I: 

(1) Animal waste management systems, as defined in 
I5A NCAC 2H .0203(3), shall require a permit, 
pursuant to ISA NCAC 2H .0217 and 2H 
.0203(4), from the Division as follows: 
(a) Systems considered deemed permitted: 

(i) swine systems designed for less than 

500 animals; 
(ii) cattle systems designed for less than 

250 animals; 
(iii) poultry systems (liquid systems) 
designed for less than 75,000 birds; 
and 
(iv) poultry systems (dry litter opera- 
tions) which meet the criteria of 15A 
NCAC 2H .0217. 
(h) Systems permitted under General Permit 
ri5A NCAC 2H .0217 (b)1: 
(]} swine systems designed for 500 

animals up to 4,999 animals; 
(ii) cattle systems designed for 250 ani- 
mals up to 999 animals; and 
(iii) poultry systems (liquid systems) 
designed for 75, (XX) birds up to 
149,999 birds, 
(c) Systems permitted under individual per- 
mits: 
(i) swine systems designed for 5, (XX) or 



1142 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



PROPOSED RULES 



more animals; 
(ii) cattle systems designed for 1,000 or 

more animals; and 
(iii) poultry systems (liquid systems) 
designed for 150.000 birds or more. 
(d) The Director may determine that a system 
should not be deemed to be permitted in 
accordance with Rule 15A NCAC 2H 
.0217 and require the system to obtain a 
general or an individual nondischarge 
permit. This determination shall be made 
based on existing or projected enyironmen- 
tal impacts. 
£e) The Director may determine that a system 
should not haye a general permit and re- 
quire the system to obtain an individual 
nondischarge permit. This determination 
shall be made based on existing or pro- 
jected environmental impacts. 
(2) A 25 foot setback is required along all open 
drainage ditches for spraying and land application 
of animal waste. 
Option 2: 

(U Animal waste management systems, as defined in 
15A NCAC 2H .0203(3). shall require a permit, 
pursuant to I5A NCAC 2H .0217 and 2H 
.0203(4), from the Division as follows: 

(a) Systems considered deemed permitted: 

(i) swine systems designed for less than 
250 animals; 

(ii) cattle systems designed for less than 
100 animals; 

(iii) poultry systems (liquid systems) 
designe d for less than 30,000 birds; 
and 

(iv) poultry systems (dry litter opera- 
tions) which meet the criteria of 15A 
NCAC 2H .0217. 

(b) Systems permitted under General Permit 
ri5A NCAC 2H .0217 (b)1: 

(i) swine systems designed for 250 or 
more animals; 

cattle systems designed for 100 or 
more animals; and 



(ii) 

(iii) 



poultry systems (liquid systems) 
designed for 30,000 or more birds. 

(c) The Director may determine that a system 
should not be deemed to be permitted in 
accordance with Rule 15A NCAC 2H 
.0217 and require the system to obtain a 
general permit under Sub-Item (yi)(B) of 
this Rule or an individual nondischarge 
permit. Tliis determination shall be made 
based on existing or projected environmen- 
tal impacts. 

(d) The Director may determine that a system 
should not have a general permit under 



m 



Sub-Item (yi)(B) of this Rule and require 
the system to obtain an individual 
nondischarge permit. This determination 
shall be made based on existing or pro- 
jected environmental impacts. 
A 25 foot setback is required along all open 
drainage ditches for spraying and land application 
of animal waste. 



Authority G. S. 143-214.1; 143-215.1; 143-215. 3(a); 143- 
215. IOC. 

.0235 NEUSE RIVER BASIN: NUTRIENT 

SENSITIVE WATERS MANAGEMENT 
STRATEGY: BUFFERS 

The Environmental Management Commission hereby 
establishes the goal of reducing the average annual load of 
nitrogen delivered to the Neuse River Estuary from point 
and nonpoint sources by a minimum of 30 percent of the 
average annual load for the period 1991 through 1995 by the 
year 2001. Furthermore, the Commission shall develop and 
adopt a plan to attempt to achieve the 30 percent reduction 
with the goal of demonstrating incremental progress each 
year. The Commission shall quantify progress toward the 
30 percent reduction goal by assigning appropriate credit for 
reductions in point and nonpoint source pollution achieved 
through mandatory and voluntary measures. The following 
management strategy applies to tlie entire Neuse River Basin 
pursuant to the Nutrient Sensitive Waters (NSW) classifica- 
tion, 15A NCAC 2B .0223. The management requirements 
for the Neuse River Basin are specified in Rules .0231, 
.0232, .0233, .0234, .0235 and .0236 of this Section. The 
following is the management strategy for buffers in the 
Neuse River Basin: 
Option ii 

(1) A forested riparian buffer in accordance with Sub- 
Items (2)(a)-(e) of this Rule is required on both 
sides of perennial and intermittent surface waters 
in the Neuse River Basin. Exceptions to the 
requirements of this Rule are described in Sub- 
Items (l)(e)(i-ix) of this Rule. Design and instal- 
lation of the buffer should be such that, to the 
maximum extent possible, sheet flow of surface 
water is achieved. Any activities that would 
result in water quality standard violations or shall 
disrupt the structural or functional integrity of the 
buffer are prohibited. The following criteria will 
be used to determine which waterbodies are 
subject to the buffer requirement: 
(a) Surface waters indicated as "blue lines" on 
the most recent versions of U.S.G.S. 
1:24.000 scale (7.5 minute quadrangle) 
topographic maps are subject to the buffer 
requirements. Waterbodies subject to the 
buffer requirements include perennial and 
intermittent streams, canals and other 
manmade drainage conveyances, lakes, and 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1143 



PROPOSED RULES 



estuanes. 

(b) In instancgs where the U.S.G.S. 1:24.000 
scale (7.5 minute quadrangle) topographic 
maps inaccurately depict streams or other 
water conveyance channels or ditches, the 
following descriptive criteria shall be used 
to determine where a buffer is required: 

(i) All perennial and intermittent 
streams which have a defined stream 
channel formed through concentra- 
tion of runoff are subject to the 
buffer requirement. 
(ii) Channelized or otherwise modified 
natural streams are subject to the 
buffer requirement, 
(iii) Ditches or manmade conveyances 
which under normal conditions re- 
ceive drainage waters from one or 
more tributary ditches, canals, or 
streams are subject to the buffer 
requirement unless exempted through 
the use of water control structures 
and nutrient management as de- 
scribed in Sub-Item (e)(vi). 

(c) The Environmental Management Commis- 
sion may provide a matrix of options for 
landowners to achieve equivalent water 
quality protection through alternative Best 
Management Practices which account for 
regional variations in soil types and topog- 
raphy. 

(d) The Directors of the Division of Water 
Quality. Division of Soil and Water Con- 
servation. Natural Resources Conservation 
Service, and Cooperative Extension Service 
shall appoint an advisory committee to 
make site-specific determinations of where 
the buffer requirements apply and alterna- 
tives for providing equivalent protection. 
The committee shall be consulted when the 
methods of determination described above 
are inadequate for a particular site. Land- 



owners and consultants are allowed to 
propose site-specific determinations for 
review by the appointed committee, 
(e) The following waterbodies and land uses 
are exempt from the buffer requirement: 
(i) Ditches or manmade conveyances 
other than modified natural streams 
which under normal conditions do 
not receive drainage waters from an 



tributary ditches, canals, or streams, 
unless the ditch or manmade convey- 
ance delivers runoff directly to wa- 
ters classified in accordance with 
15A NCAC 2B .0100. 



(ii) Ditches or manmade conveyances 



other than modified natural streams 
which are used exclusively for drain- 
age of silvicultural land or naturally 
forested areas. All forest harvesting 
operations shall be in compliance 
with North Carolina's Forest Prac- 
tices Guidelines Related to Water 
Quality. 

(iii) Ponds and lakes created for animal 
watering, irrigation, or other agricul- 
tural uses that are not part of a natu- 
ral drainage way that is classified in 
accordance with 15A NCAC 23 
.0100. 

(iv) Development activities that have 
received an approved Sedimenta- 
tion/Erosion Control Plan prior to 
the effective date of this Rule, and 
development activities for which a 
Sedimentation/Erosion Control Plan 
was not required but for which lots 
were platted and recorded prior to 
the effective date of this Rule are 
exempt. However, landowners are 
encouraged to meet the minimum 
buffer requirements of this Rule, and 
to maintain existing forested buffers 
to the maximum extent practical, 
without compromising the functions 
and integrity of any existing perma- 
nent structures and facilities. 

(v) New development in the buffer shall 
be limited to water dependent struc- 
tures as defined in i5A NCAC 2B 
.0202. Any structures shall be lo- 
cated, designed, constructed and 
maintained to provide maximum 
nutrient removal, to have the least 
adverse effects on aquatic life and 
habitat and to protect water quality. 

(vi) Canals, ditches, and other drainage 
conveyances are exempt from the 
riparian buffer requirement if both 
water control structures with a water 
management plan and a nutrient 
management plan are implemented 
on the adjacent agricultural land 
according to the standards and speci- 
fications of the USDA ; Natural 
Resources Conservation Service or 
the standards and specifications 
adopted by the NC Soil and Water 
Conservation Commission. The 
water control structures and nutrient 
management practices must provide 
equivalent protection and directly 
affect the land and waterbodies 



1144 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



PROPOSED RULES 



draining into the waterbody ex- 
empted from the buffer requirement. 
To the maximum extent practical, 
water control structures should be 
managed to maximize nitrogen re- 
moval throughout the year. Written 
approval from the local Soil and 
Water Conservation District must be 
obtained for the land certifying that 
appropriate nutrient management and 
water management plans have been 
developed. If the nutrient manage- 
ment plans and water management 
plans are not implemented then a 
buffer pursuant to this Section is 
required, 
(vii) Roads, bridges, stormwater manage- 
ment facilities, ponds, and utilities 
may be allowed where no practical 
alternative exists. These structures 
shall be located, designed, con- 
structed, and maintained to have 
minimal disturbance, to provide 
maximum nutrient removal and ero- 
sion protection, to have the least 
adverse effects on aquatic life and 
habitat, and to protect water quality 
to the maximum extent practical 
through the use of Best Management 
Practices, 
(viii) Stream restoration projects, scientific 
studies, stream gauging, water wells. 
passive recreation facilities such as 
boardwalks, trails, pathways, his- 
toric preservation and archaeological 
activities are permitted, 
(ix) Stream crossings associated with 
timber harvesting are permitted if 
performed in accordance with the 
Forest Practices Guidelines Related 
to Water Quality (15A NCAC U 
.0201-.0209). 
(f) The following are modifications to the 
riparian forest buffer system. 
(i) On agricultural land where either 
water control structures with a water 
management plan, or a nutrient man- 
agement plan is implemented accord- 
ing to the standards and specifica- 
tions of the USDA ; Natural Re- 
sources Conservation Service or the 
standards and specifications adopted 
by the NC Soil and Water Conserva- 
tion Commission, then a 20-ft for- 
ested or a 30-ft vegetated buffer is 
required. The water control struc- 
tures or nutrient management prac- 



tices must provide equivalent protec- 
tion and directly affect the land and 
waterbodies draining into the 
waterbody with a modified buffer 
requirement. To the maximum ex- 
tent practical, water control struc- 
tures should be managed to maxi- 
mize nitrogen removal throughout 
the year, 
(ii) Periodic maintenance of drainage 
channels, canals, and ditches is al- 
lowed provided that disturbance is 
minimized and the structure and 
function of the buffer is not compro- 
mised. A grassed travelway is al- 
lowed on one or both sides of the 
waterbody when alternative forms of 
maintenance access are not practical. 
TTie width and specifications of the 
travelway shall be only that needed 
for equipment access and operation. 
The travelway should be located to 
maximize stream shading (i.e.. lo- 
cated on the north and/or east side 
of the channel if possible). Channel 
and canal maintenance techniques 
may include the use of winches, 
backhoes. booms and logging 
skidders. IDrag lines should only be 
used for large channels where less 
damaging maintenance techniques 
are not feasible. Any material re- 
moved from the channel shall be 
spread in a manner that does not 
compromise the water quality func- 
tions of the buffer and maintenance 
of appropriate vegetative cover. 
(iii) A vegetated buffer may be substi- 
tuted for an equivalent width of for- 
ested buffer within 100 feet of tile 
drainage, 
(iv) Where the buffer requirements 
would result in an unavoidable loss 
of tobacco allotments \{1 CFR 
723.220(c)1 and the BMPs of con- 
trolled drainage or nutrient manage- 
ment are not in place, forest cover is 
required in Zone 1 only. The re- 
maining 30 feet of the buffer must 
meet the requirements for Zone 3^ 
£2} The buffer shall have three zones as follows: 
(a) Zone \ begins at the normal waterline or at 
the upper edge of the active channel of the 
surface waterbody and extends landward a 
distance of 20 feet, measured horizontally 
on a line perpendicular to the waterbody. 
Etominant vegetation shall consist of exist- 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1145 



PROPOSED RULES 



ing or planted trees and shrubs with a 
dense ground cover. For those sites where 
forest vegetation does not exist, it is ac- 
ceptable to allow the forest buffer to suc- 
ceed naturally to a wooded state. Any 
plantings shall primarily consist of locally 
native trees and shrubs. Zone 1 is intended 
to remain in an undisturbed state, however 
the following practices and activities are 
allowed in Zone jj. 

(jj Selective removal of high value trees 
is allowed where water quality val- 
ues are not compromised. Timber 
removal can contribute to removal of 
nutrients sequestered in stems and 
branches and maintain nutrient up- 
take and vigorous growth. Skidding 
of trees shall be directed away from 
the any water course or water body. 
Skidding shall be done in a manner 
to prevent creation of ephemeral 
channels perpendicular to the 
waterbody. Limited mechanized 
equipment is allowed in this area. 
Any tree removal must be performed 
in a maimer that does not compro- 
mise the intended purpose of the 
buffer and is in accordance with the 
Forest Practices Guidelines Related 
to Water Quality (15A NCAC U 
.0201-. 0209): 
(ii) Horticulture practices may be used 
to maintain the health of individual 



fiii) 



trees; 

Individual trees may 



be removed 



which are in danger of causing dam- 
age to dwellings, other structures, or 
the stream channel; and 
(iv) Other timber cutting techniques ap- 
proved by the Department may be 
undertaken if necessary to prevent 
extensive pest or disease infestation, 
fb) Zone 2\_ begins at the outer edge of Zone \_ 
and extends landward a minimum of 20 
feet as measured horizontally on a line 
perpendicular to the waterbody. The com- 
bined minimum width of Zones \ and 2 
shall be 40 feet. Dominant vegetation shall 
consist of existing or planted trees and 
shrubs with a dense ground cover. For 
those sites where forest vegetation does not 
exist it is acceptable to allow the forest 
buffer to succeed naturally to a wooded 
state. The following practices and activi- 
ties are allowed in Zone 2 in addition to 
those allowed in Zone \\_ Removal of tree 
and shrub products such as timber, nuts. 



and fruit is permitted on a periodic and 
regular basis provided the intended purpose 
is not compromised by loss of vegetation or 
harvesting disturbance. A minimum of 40 
percent canopy cover on a ger acre basis 
must be maintained. Timber removal and 
skidding of trees shall be directed away 
from the water course or waterbody. 
Skidding shall be done in a manner to 
prevent creation of ephemeral channels 
perpendicular to the waterbody. Any tree 
removal must be performed in a manner 
that does not compromise the intended 
purpose of the buffer and is in accordance 
with the Forest Practices Guidelines Re- 
lated to Water Quality (15A NCAC fJ 
.0201 -.0209). Forest vegetation may be 
managed to minimize shading on adjacent 
land if the water quality function of the 
buffer is not compromised; 

(c) Zone 32 begins at the outer edge of Zone 2 
and extends landward a minimum of 10 
feet as measured horizontally on a line 
perpendicular to the waterbody. The com- 
bined minimum width of Zones \^ 2 and 3 
shall be 50 feet. Vegetation shall be com- 
posed of dense grasses and forbs or exist- 
ing forest vegetation. Vegetation must 
consist of a dense ground cover and be 
maintained in a vigorous condition. Resi- 
dential and commercial lawns meet the 
Zone 3 requirements as long as they are 
maintained and protected in accordance 
with these specifications. If existing wood- 
land extends beyond the minimum 50 foot 
buffer width, the existing forest vegetation 
may be used to meet the Zone 3 width 
requirement. However, a minimum 10 
foot managed grass strip is recommended 
adjacent to agricultural fields with a slope 
greater than 2 percent. The following 
practices and activities are not allowed: 

(i) New permanent structures; 

(ii) New on-site sanitary sewage systems 
which use ground absorptions; 

(iii) Activities that would result in water 
quality standards violations or shall 
disrupt the structural or functional 
integrity of the buffer are prohibited. 

(d) Operation and maintenance of Zones \_^ 2 
and 3 is required. The buffers should be 
inspected by the landowner periodically and 
immediately following severe storms for 
evidence of sediment deposit, erosion or 
concentrated surface flow channels. Sheet 
flow must be maintained through dispersing 
concentrated flows, periodic reshaping of 



1146 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



PROPOSED RULES 



earth structures, removal or grading of 
accumulated sediment, or re-establishment 
of vegetation to maintain effectiveness of 
the buffer. Prompt corrective action must 
be taken by the landowner to stop erosion 
and restore sheet flow, 
(e) Removal or disturbance of vegetation or 
groundcover inconsistent with erosion 
control and buffering objectives is not 
allowed within the buffer. 
(3) The buffer shall be established on agricultural 
land within two years of the effective date of this 
Rule. 
£4} Where the standards and management require- 
ments for forest buffers are in conflict with other 
laws, regulations, permits and policies regarding 
streams, steep slopes, erodible soils, wetlands, 
floodplains, forest harvesting, surface mining, 
land disturbance activities, development in Coastal 
Area Management Act Areas of Environmental 
Concern, or other environmental protection areas, 
the more protective shall apply so long as they are 
in effect. If other standards and requirements 
which provide equal or better protection than the 
forested buffer are no longer m effect then the 
buffer requirements of this Rule shall apply. 
(5) Lxical government programs approved by the 
Director of the Division of Water Quality may be 
allowed to implement and manage the riparian 
buffer requirement within their jurisdictions- 
Option 2: 

(1) A vegetated riparian buffer is required on both 
sides of perennial and intermittent surface waters 
iri the Neuse Rive r Basin. Exceptions to the 
requirements of this Rule are described in Sub- 
Items (l)(e)(i)-(ix). Design, installation, and 
maintenance of the buffer shall be such that, to 
the maximum extent practical, sheet flow of 
surface water is achieved. Any activities that will 
result in water quality standard violations or 
impair the structural or functional integrity of the 
buffer are prohibited. Tlie following criteria will 
be used to determine which waterbodies are 
subject to the buffer requirement: 
£a} Surface waters indicated as "blue lines" on 
the most recent versions of U.S.G.S. 



1:24,000 scale (7.5 minute quadrangle) 
topographic maps are subject to the buffer 
requirements. Waterbodies subject to the 
buffer requirements include perennial and 
intermittent streams, canals and other 
manmade drainage conveyances, lakes, and 
estuaries. 
£b} In instances where the U.S.G.S. 1:24.000 
scale (7.5 minute quadrangle) topographic 
maps inaccurately depict streams or other 
water conveyances, channels or ditches, the 



f ollowing descriptive criteria shall be used 

to determine where a buffer is required: 
(i) All perennial and intermittent 
streams which have a defined stream 
channel formed through concentra- 
tion of runoff are subject to the 
buffer requirement. 

(ii) Channelized or otherwise modified 
natural streams are subject to the 
buffer requirement. 

(iii) Ditches or manmade conveyances 
which under normal conditions re- 
ceive drainage waters from one or 
more tributary ditches, canals, or 
streams are subject to the buffer 
requirement unless exempted through 
the use of water control structures 
and nutrient management as de- 
scribed in Sub-Item (l)(e)(yi) of this 
Rule. 

(c) The Environmental Management Commis- 
sion may provide a matrix of options for 
landowners to achieve equivalent water 
quality protection through alternative Best 
Management Practices which account for 
regional variations in soil types and topog- 
raphy. 

(d) The Directors of the Division of Water 
Quality. Division of Soil and Water Con- 
servation, Natural Resources Conservation 
Service, and Cooperative Extension Service 
shall appoint an advisory committee to 
make site-specific determinations of where 
the buffer requirements apply and alterna- 
tives for providing equivalent protection. 
The committee shall be consulted when the 
methods of determination described above 
are inadequate for a particular site. Land- 
owners and consultants are allowed to 
propose site-specific determinations for 
review by the appointed committee. 
The following waterbodies and land use are 
exempt from the buffer requirement: 

(i) Ditches or manmade conveyances 
other than modified natural streams 
which under normal conditions do 
not receive drainage waters from any 
tributary ditches, canals, or streams. 
unless the ditch or manmade convey- 
ance delivers runoff directly to wa- 
ters classified in accordance with 



(el 



15A NCAC 2B .0100. 



im 



Ditches or manmade conveyances 
other than modified natural streams 
which are used exclusively for drain- 
age of silvicultural land or naturally 
forested areas. All forest harvesting 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1147 



PROPOSED RULES 



operations shall be in compliance 
with North Carolina's Forest Prac- 
tices Guidelines Related to Water 
Quality. 

(iii) Ponds and lakes created for animal 
watering, irrigation, or other agricul- 
tural uses that are not part of a natu- 
ral drainage way that is classified in 
accordance with 15A NCAC 2B 
.0100. 

(iy) Development activities that have 
received an approved Sedimenta- 
tion/Erosion Control Plan prior to 
the effective date of this Rule, and 
development activities for which a 
Sedimentation/Erosion Control Plan 
was not required but for which lots 
were platted and recorded prior to 
the effective date of this Rule are 
exempt. However, landowners are 
encouraged to meet the minimum 
buffer requirements of this Rule, and 
to maintain existing forested buffers 
to the maximum extent practical, 
without compromising the functions 
and integrity of any existing perma- 
nent structures and facilities. 

(v} New development in the buffer shall 
be limited to water dependent struc- 
tures as defined in 15A NCAC 2B 
.0202(59). Any structures shall be 
located, designed, constructed and 
maintained to provide maximum 
nutrient removal, to have the least 
adverse effects on aquatic life and 
habitat and to protect water quality. 
Landowners are encouraged to main- 
tain existing forested buffers to the 
maximum extent practical. 

(yj) Canals, ditches, and other drainage 
conveyances are exempt from the 
riparian buffer requirement if both 
water control structures with a water 



management plan 



and 



a nutnent 



management plan are implemented 
on the adjacent agricultural land 
according to the standards and speci- 
fications of the USDA- Natural Re- 
sources Conservation Service or the 
standards and specifications adopted 
by the NC Soil and Water Conserva- 
tion Commission. TTie water control 
structures and nutrient management 
practices must provide equivalent 
protection and directly affect the 
land and waterbodies draining into 
the waterbody exempted from the 



buffer requirement. To the maxi- 
mum extent practical, water control 
structures should be managed to 
maximize nitrogen removal through- 
out the year. Written approval from 
the local Soil and Water Conserva- 
tion District must be obtained for the 
land certifying that appropriate nutri- 
ent management and water manage- 
ment plans have been developed. If 
the nutrient management plans and 
water management plans are not 
implemented, then a buffer pursuant 
to this Section is required, 
(vii) Roads, bridges, stormwater manage- 
ment facilities, ponds, and utilities 
may be allowed where no practical 
alternatives exists. These structures 
shall be located, designed, con- 
structed, and maintained to have 
minimal disturbance, to provide 
maximum nutrient removal and ero- 
sion protection, to have the least 
adverse effects on aquatic life and 
habitat, and to protect water quality 
to the maximum extent practical 
through the use of best management 
practices, 
(yjii) Stream restoration projects, scientific 
studies, stream gauging, water wells. 
passive recreation facilities such as 
boardwalks, trails, pathways, his- 
toric preservation and archaeological 
activities are permitted, 
(ix) Stream crossings associated with 
timber harvesting are permitted if 
performed in accordance with the 
Forest Practices Guidelines Related 
to Water Quality (ISA NCAC JJ 
.0201- .0209). 
(f) The following are modifications to the 
vegetated buffer system, 
(i) On agricultural land where either a 
water control structure u ith a water 
management plan, or nutrient man- 
agement plan is implemented accord- 
ing to the standards and specifica- 
tions of the USDA : Natural Re- 
sources Consen.'ation Service or the 
standards and specifications adopted 
by the NC Soil and Water Conser\'a- 
tion Commission, then a 20-foot 
forested or a 30-foot vegetated 
buffer is required. The water con- 
trol structures or nutrient manage- 
ment practices must provide equiva- 
lent protection and directly affect the 



1148 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



PROPOSED RULES 



land and waterbodies draining into 
the waterbody with a modified 
buffer requirement. To the maxi- 
mum extent practical, water control 
structures should be managed to 
maximize nitrogen removal through- 
out the year. 
(ii) A 30-foot forested buffer may be (4) 

substituted in lieu of the requirement 
for 50 feet of vegetated buffer- 
Dominant vegetation shall consist of 
existing or planted trees and shrubs 
with a dense ground cover. For 
those sites where forest vegetation 
does not exist, it is acceptable to 
allow the forest buffer to succeed 
naturally to a wooded state. Selec- 
tive removal of tree and shrub prod- 
ucts such as timber, nuts, and fruit 
is permitted provided the intended 
purpose is not compromised by loss 
of vegetation or harvesting distur- 
bance. 
(iii) Periodic maintenance of drainage 
channels, canals, and ditches is al- 
lowed provided that disturbance is 
minimized and the structure and 
function of the buffer is not compro- 
mised. A grassed travelway is al- 
lowed on one or both sides of the 
waterbody when alternative forms of 
maintenance access are not practical. 
The width and specifications of the 
travelway shall be only that needed 
for equipment access and operation. 
The travelway should be located to 
maximize stream shading (i.e.. lo- (6) 

cated on the north and/or east side 
of the channel if possible). Channel 
and canal maintenance techniques (7) 

may include the use of winches, 
backhoes. booms, and logging 
skidders. Drag lines should only be 
used for large channels where less 
damagin g maintenance techniques 
are not feasible. Any material re- 
moved from the channel shall be 
spread in a manner that does not 
compromise the water quality func- 
tions of the buffer and maintenance 
of appropriate vegetative cover. 

(2) The vegetated buffer begins at the normal water- 
line or at the upper edge of the active channel of 

the surface waterbody and extends landward a (8) 

distance of 50 feet, measured horizontally on a 
line perpendicular to the waterbody. 

(3) Vegetation shall be composed of dense grasses 



and forbs or forest vegetation. Vegetation must 
consist of a dense ground cover and be maintained 
in a vigorous condition. Lawns meet the buffer 
requirements as long as they are maintained and 
protected m accordance with these specifications. 
Landowners are encouraged to maintain existing 
forested buffers to the maximum extent practical. 
The following practices and activities are not 
allowed: 

(a) New permanent structures: 

(b) New on-site sanitary sewage systems which 
use ground absorption: 

(c) Removal or disturbance of vegetation or 
ground cover inconsistent with erosion 
control and buffering objectives is not 
allowed within the buffer. 

(5) Maintenance of buffers is required. Sheet flow 
must be maintained to the maximum extent practi- 
cal through dispersing concentrated flows, peri- 
odic reshaping of earth structures, removal or 
grading of accumulated sediment, or re-establish- 
ment of vegetation to maintain effectiveness of the 
buffer. Corrective action should be taken by the 
landowner to stop erosion and restore sheet flow. 
Timber removal can contribute to removal of 
nutrients sequestered in stems and branches and to 
maintain nutrient uptake and vigorous growth. 
Skidding of trees shall be directed away from any 
water course or waterbody when practical. 
Skidding shall be done in a manner to prevent 
creation of ephemeral channels perpendicular to 
the waterbody. Any tree removal must be per- 
formed in a manner that does not compromise the 
intended purpose of the buffer and in accordance 
with the Forest Practices Guidelines Related to 
Water Quality (15A NCAC IJ .0201- .0209). 



TTie buffer shall be established on agricultural 
land within 2 years of the effective date of this 
Rule. 

Where the standards and management require- 
ments for vegetated buffers are in conflict with 
other laws, regulations, permits and policies 
regarding streams, steep slopes, erodible soils, 
wetlands, floodplains. forest harvesting, surface 
mining, land disturbance activities, development 
in Coastal Area Management Act Areas of Envi- 
ronmental Concern, or other environmental 
protection areas, the more protective shall apply 
so long as they are in effect. If other standards 
and requirements which provide equal or better 
protection than the vegetated buffer are no longer 
in effect, then the buffer requirements of this Rule 
shall apply. 

Local government programs approved by the 
Director of the Division of Water Quality may be 
allowed to implement and manage the riparian 
buffer requirement within their jurisdictions. 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1149 



PROPOSED RULES 



Authority G. S. 143-214.1; 143-214.7; 143-215. 3(a)(1). 

.0236 NEUSE RIVER BASIN: NUTRIENT 

SENSITIVE WATERS MANAGEMENT 
STRATEGY: NUTRIENT MANAGEMENT 

The Environmental Management Commission hereby 
establishes the goal of reducing the average annual load of 
nitrogen delivered to the Neuse River Estuary from point 
and nonpoint sources by a minimum of 30 percent of the 
average annual load for the period 1991 through 1995 by the 
year 2001. Furthermore, the Commission shall develop and 
adopt a plan to attempt to achieve the 30 percent reduction 
with the goal of demonstrating incremental progress each 
year. The Commission shall quantify progress toward the 
30 percent reduction goal by assigning appropriate credit for 
reductions m point and nonpoint source pollution achieved 
through mandatory and voluntary measures. Tlie following 
management strategy applies to the entire Neuse River Basin 
pursuant to the Nutrient Sensitive Waters (NSW) Classifica- 
tion, 15A NCAC 2B .0223. The management requirements 
for the Neuse River Basin are specified in Rules .0231, 
.0232, .0233. .0234, .0235 and .0236 of this Section. The 
following is the management strategy for nutrient manage- 
ment in the Neuse River Basin: 
Option h 

( 1 ) Nutrient management plans shall be developed and 
implemented within two years of the effective date 
of this Rule for the following areas: 

(a) Cropland and pasture land under individual 
ownership or lease agreements where nutri- 
ents are applied and the land owned or 
leased is greater than or equal to 250 acres; 

(b) Contiguous tracts of agricultural land under 
multiple ownership which together com- 
prise a total area receiving nutrients of 
greater than or equal to 250 acres. 

jlan shall meet the standards and specifica- 
tions of the USDA - Natural Resources Conserva- 



(2) Ihe 



tion Service or the standards and specifications 
adopted by the NC Soil and Water Conservation 
Commission. The landowner is responsible for 
development of the nutrient management plan. 
Upon written agreement between the landowner 
and the leasee, responsibility and liability for 
proper development and implementation of the 
nutrient management plan may be transferred 
from the landowner to the leasee. Tlie nutrient 
management plan along with supporting docu- 
ments must be kept on-site. For agricultural land, 
written approval from the local Soil and Water 
Conservation District must be obtained for the 
land certifS'ing that an appropriate nutrient man- 
agement plan has been developed. 
Option 2i 

(1) Nutrient management plans shall be developed and 
implemented within two years of the effective date 



of this Rule for the following areas: 

(a) Cropland and pasture land under individual 
ownership or lease agreements where nutri- 
ents are applied and the land owned or 
leased is greater than or equal to 250 acres; 

(b) Contiguous tracts of agricultural land under 
multiple ownership which together com- 
prise a total area receiving nutrients of 
greater than or equal to 250 acres; 

(c) Private and public recreational land where 
nutrients are applied to an area greater than 
or equal to JO acres; 

(d) Land receiving nutrients applied by com- 
mercial applicators. 

(2) Agricultural nutrient management plans shall meet 
the standards and specifications of the USDA ; 
Natural Resources Conservation Service or the 
standards and specifications adopted by the NC 
Soil and Water Conservation Commission. The 
nutrient management plan along with supporting 
documents must be kept on-site. For agricultural 
land, written approval from the local Soil and 
Water ConseA'ation District must be obtained for 
the land certifying that an appropriate nutrient 
management plan has been developed. The 
landowner is responsible for development of the 
nutrient management plan except for turfgrass and 
non-agricultural areas receiving nutrients applied 
by commercial applicators. Upon written agree- 
ment between the landowner and the leasee, 
responsibility and liability for proper development 
and implementation of the nutrient management 
plan may be transferred from the landowner to the 
leasee. The commercial applicators shall be 
responsible for developing generic nutrient man- 
agement plans for varying turfgrass and horticul- 
tural application scenarios. The standards and 
specifications of nutrient management plans for 
turfgrass, horticultural, and non-agricultural 
application of nutrients shall be developed and 
approved by the Division of Water Quality in 
consultation with the Natural Resources Conserva- 
tion Service, the Division of Soil and Water 
Conservation, the North Carolina Department of 
Agriculture, and the Cooperative Extension 
Service. 

Authority G. S. 143-214.1; 143-214.7;143-215. 3(a)(1). 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Wildlife Commission 
intends to amend rules cited as 15A NCAC lOF .0302 and 
.0307. Notice of Rule-making Proceedings for Rule .0302 
was published in the Register on June 3, 1996. Notice of 
Rule-making Proceedings for Rule .0307 was published in 



1150 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



PROPOSED RULES 



the Register on July 15, 1996. 

Proposed Effective Date: March 2, 1997 

A Public Hearing will be conducted at 10:00 am on 
November 4, 1996 at the Archdale Building, Wildlife 
Conference Room, 512 N. Salisbury Street, Raleigh, NC 
27604. 

Reason for Proposed Action: ISA NCAC lOF .0302 - 

Amend rule to regulate boat speeds in congested areas by 
establishing no-wake zones /Town of Atlantic Beach, Hoop 
Pole Creek. 

ISA NCAC lOF .0307 - Establish no wake zone on Lake 
Norman in Iredell County. 

Comment Procedures: Interested persons may present their 
views either orally or in writing at the hearings. In addi- 
tion, the record of hearing will be open for receipt of written 
comments from October 15, 1996 through November 14, 
1996. Such written comments must be delivered or mailed 
to the North Carolina Wildlife Resources Commission, 512 
North Salisbury Street, Raleigh, NC 27604-1188. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do 
not have a substantial economic impact of at least five 
million dollars ($5,000,000) in a 12-month period. 

CHAPTER 10 - WILDLIFE RESOURCES 
AND WATER SAFETY 

SUBCHAPTER lOF - MOTORBOATS 
AND WATER SAFETY 

SECTION .0300 - LOCAL WATER SAFETY 
REGULATIONS 

.0302 ATLANTIC BEACH 

(a) Regulated Areas. This Rule applies to the wat e rs of 
th e oanalo within th e Bubdivioiono of Atlontio B e ach Isl e s 
and Sound Viow Isles within the town limits of Atlantic 
Beach and to tho waters of Boguo Sound from the oast sido 
of Chann e l Bay Mobile Homo Park running w e st e rly to th e 
west sid e of North Shor e Mobil e Hom e Park e xt e nding 55 
yards from the shore, following waters in Atlantic Beach: 
(1) the waters of the canals within the subdivisions of 
Atlantic Beach Isles and Sound View Isles within 
the town limits of Atlantic Beach; 
the waters of Bogue Sound from the east side of 
Channel Bay Mobile Home Park running westerly 
to the west side of North Shore Mobile Home 
Park extending 55 yards from the shore; 
the waters of Bogue Sound extending 50 yards on 
each side of the entrance of Hoop Pole Creek Bay 
and 50 yards on each side of the four boat ramps 
in Hoop Pole Creek Bay; 



£21 



m 



(4) the waters of Bogue Sound beginning at day 
markers #3 PA and #4 PA at the entrance going 
into 8 Vi Marina and run 50 yards on either side 
of day marker #8 PA and extending 50 yards on 
each side of the boat ramp at 8 ^ Marina Village. 

(b) Speed Limit. No person shall operate any motorboat 
or vessel at greater than no-wake speed within any of the 
regulated areas identified in Paragraph (a) of this Rule. 

(c) Placement and Maintenance of Markers. TTie Town 
of Atlantic Beach is designated as a suitable agency for 
placement and maintenance of the markers implementing 
this Rule, subject to the approval of the United States Coast 
Guard and the United States Army Corps of Engineers. 

Authority G.S. 75A-3; 75A-15. 

.0307 CATAWBA: IREDELL: LINCOLN AND 
MECKLENBURG COUNTIES 

(a) Regulated Area. This Rule applies to Lake Norman 
which is located in the counties of Catawba, Iredell, Lincoln 
and Mecklenburg. 

(b) Speed Limit Near Shore Facilities. No person shall 
operate a vessel at greater than no-wake speed within 50 
yards of any marked boat launching area, bridge, dock, 
pier, marina, boat storage structure, or boat service area on 
the waters of Lake Norman. 

(c) Speed Limit Near Parks: No person shall operate a 
vessel greater than no-wake speed within 50 yards of the 
following parks as designated by appropriate markers: 

(1) Jetton Park; 

(2) Brown's Cove Park. 

(d) Specific Speed Zones: No person shall operate a 
vessel at greater than no-wake speed in the following 
designated waters: 

(1) the entire area of Bluff Point Cove; 

(2) that small cove north of the inlet of Hager Creek 
where McKendree Road and Kemp Road join. 

(e) (d) Restricted Swimming Areas. No person operating 
or responsible for the operation of a vessel shall permit it to 
enter any marked swimming area on the waters of Lake 
Norman. 

(f) fe) Placement and Maintenance of Markers. Each of 
the boards of commissioners of the above-named counties is 
designated a suitable agency for placement and maintenance 
of navigational aids and regulatory markers of a general 
nature on the waters of Lake Norman within the boundaries 
of each respective county. Provided the said counties 
exercise their supervisory responsibility, they may delegate 
the actual process of placement or maintenance of such 
markers to some other agency, corporation, group, or 
individual. 

With regard to marking the restricted zones described 
above, markers may be placed and maintained by the 
individuals using the protected areas and facilities in 
accordance with the Uniform Waterway Marking System 
and supplementary standards as set forth in Rule .0301(g)(1) 
to (8) of this Section. 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1151 



PROPOSED RULES 



(1) 

(2) 



(g) (I) Markers Reflecting County Regulation. Where 

any marker conforming or required to conform to the 

uniform system is placed in or near Lake Norman advising 

the public of the provisions of any local act or of county 

ordinances made under the authority of any local act and: 

Such provisions are not within the enforcement 

jurisdiction of the Commission; and 

The Commission has not passed regulations of an 

identical or closely similar nature to that of the 

provisions Ln question, such marker to be deemed 

in conformity with the uniform system must bear 

on it the legend "County Regulation" at such a 

place or at such places as needed to indicate 

which provisions are not enforceable by the 

Commission as a matter of state law. 

(h) f*) Miscellaneous Restrictions. In addition to the acts 

prohibited by Paragraph (f) of Rule .0301 of this Section, it 

is unlawful to commit any such act with respect to any 

marker placed or erected under the authority of Chapter 

1205 of the 1965 Session Laws of the State of North 

Carolina by any one of the above named counties or by 

them jointly. 



Authority G.S. 75A-3: 75A-15: S.L. 1965, c. 1205. 



1152 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



TEMPORARY RULES 



The Codifier of Rules has entered the following temporary rule(s) in the North Carolina Administrative Code. Pursuant 
to G.S. 150B-21.1(e), publication of a temporary rule in the North Carolina Register serves as a notice of rule-making 
proceedings unless this notice has been previously published by the agency. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT, 
HEALTH, AND NATURAL RESOURCES 

Rule-making Agency: NC Marine Fisheries Commission 

Rule Citation: 15A NCAC 3M .0204. .0504 

Effective Date: October 1, 1996 

Findings Reviewed and approved by Julian Mann III 

Authority for the rule-making: G.S. 113-134; 113-182; 
113-221; 143B-289.4 

Reason for Proposed Action: ISA NCAC 3M .0204 - 
House Bill 1077, ratified June 21, 1996, authorizes tempo- 
rary rules to establish bag and size limits for striped bass. 
15A NCAC 3M .0504 - House Bill 1077, ratified June 21, 
1996, authorizes temporary rules to establish bag limits for 
spotted seatrout. The temporary rule filed effective Septem- 
ber 1, 1996, contained an error which removed the size limit 
for spotted seatrout. This was a typographical error, was 
not included in the actions taken by the Marine Fisheries 
Commission, was not included in the authority granted by 
House Bill 1077, and would pose a threat to the welfare of 
this species if the immature fish can be taken. 

Comment Procedures: Comments may be submitted in 
writing within 30 days after the date of publication in the 
North Carolina Register. Written comments may be submit- 
ted to Juanita Gaskill, APA Coordinator, PO Box 769, 
Morehead, NC 28557 

CHAPTER 3 - MARINE FISHERIES 

SUBCHAPTER 3M - FINnSH 



SECTION .0200 - STRIPED BASS 



.0204 



SEASON, SIZE AND HARVEST LIMIT: 
ATLANTIC OCEAN 

(a) It is unlawful to possess striped bass taken from the 
Atlantic Ocean less than 2 8 inohoo total l e ngth the size limit 
as determined by the Atlantic States Marine Fisheries 
Commission in their Interstate Fisheries Management Plan 
for striped bass. The Fisheries Director shall issue procla- 
mations necessary to bring North Carolina's size limit in 
compliance with the Interstate Fisheries Management Plan . 

(b) It is unlawful to po s so ss more than two striped bass 
p e r p e rson p e r day tak e n from tho Atlantic Oo e on by hook 
and lin e . 

(e) £b} It is unlawful to buy, sell, transport, or possess 



striped bass from the Atlantic Ocean by any means except 
that the Fisheries Director may establish an open season at 
any time, and is further empowered to impose any or all of 
the following restrictions: 

(1) Specify number of days, 

(2) Specify areas, 

(3) Specify means and methods which may be em- 
ployed in the taking, 

(4) Specify time period, 

(5) Limit the quantity' taken by commoroial gear, and 
quantity, both commercially and recreationally. 
and 

(6) Proyide for biological sampling of fish harvested. 

History Note: Authority G.S. 113-134; 113-182; 113-221; 

143B-289.4; 

Eff. January 1, 1991; 

Amended Eff. March 1, 1996; 

Temporary Amendment Eff. October 1_^ 1996. 

SECTION .0500 - OTHER FINFISH 

.0504 TROUT 

(a) Spotted seatrout (speckled trout). It is unlawful to 
possess spotted seatrout less than 12 inches total length. 
TTie Fisheries Director may, by proclamation, specify the 
quantity for the taking of spotted seatrout by hook-and-line 
in order to comply with the management requirements 
incorporated in the Atlantic States Marine Fisheries Com- 
mission Fishery Management Plan for Spotted Seatrout. 

(b) Weakfish (gray trout). 

(1) TTie Fisheries Director may, by proclamation, 
impose any or all of the following restrictions on 
the taking of weakfish by commercial gear: 

(A) Specify areas. 

(B) Specify seasons. 

(C) Specify quantity. 

(D) Specify means/methods. 

(E) Specify size, but the minimum size shall 
not be greater than 12 inches total length. 

(2) TTie Fisheries may, by proclamation, in order to 
comply with the Atlantic States Marine Fisheries 
Commission Weakfish Management Plan, impose 
any or all of the following restrictions on the 
taking of weakfish by hook-and-line: 

(A) Specify quantity, 

(B) Specify size. 

History Note: Authority G.S. 113-134; 113-182; 

143B-289.4; 

Eff. January 1, 1991; 

Amended Eff. March 1, 1996; March 1, 1995; February 1, 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1153 



TEMPORARY RULES 



1992: 

Temporary Amendment Eff. September 1 , 1996; 

Temporary Amendment Eff. October 7^ 1996. 



TITLE 24 - INDEPENDENT AGENCIES 

Rule-making Agency: North Carolina Housing Finance 

Agency 

Rule Citation: 24 NCAC IP .0101 - .0103; 0201 - .0203 

Effective Date: October 1, 1996 

Findings Reviewed and approved by Julian Mann III 

Authority for the rule-maliing: G.S. 122A-5; 122A-5.1; 
122A-5. 13; Chapter 18, House Bill 53 

Reason for Proposed Action: To implement the Adult Care 
Home, Group Home and Nursing Home Fire Protection 
Fund established by G.S. 122A-5.13. (Chapter 18, House 
Bill 53) 

Comment Procedures: Written comments must be submit- 
ted to the APA coordinator within 60 days of the publication 
of this rule in the North Carolina Register. Comments 
should be sent to Stephanie Bames-Simms at the North 
Carolina Housing Finance Agency, 3801 Lake Boone Trail, 
Raleigh. NC 27607-2926. 

CHAPTER 1 - N.C. HOUSING FINANCE AGENCY 

SUBCHAPTER IP - FIRE PROTECTION FUND 

SECTION .0100 - GENERAL INFORMATION 

.0101 PURPOSE 

The rules in this Subchapter implement the Adult Care 
Home. Group Home, and Nursing Home Fire Protection 
Fund ("Fire Protection Fund") created by G.S. 122A-5.13. 

History Note: Authority G.S. 122A-5; 122A-5.1: 122A- 

5. 13; 

Temporary Adoption Eff. October 1 , 1996. 

.0102 ELIGIBILITY 

Principal sponsors or owners of a facility occupied by the 
elderly or deyelopmentally disabled and licensed under G.S. 
131D-2 and G.S. 13 IE- Article 6 shall be eligible to partici- 
pate in the fire protection fund program. 

History Note: Authority G.S. 122A-5; 122A-5.1; 122A- 

5. 13; 

Temporary Adoption Eff. October 1 , 1996. 

.0103 TYPES OF ASSISTANCE 



(a) The North Carolina Housing Finance Agency shall 
use program funds to make loans secured by the facility and 
real property. Loans for smoke detection systems shall have 
an interest rate of 3% -6% and a maximum term of JO years. 
Loans for sprinkler systems shall have an interest rate of 
3% and a maximum term of 20 years. The interest rate for 
smoke detection system loans shall be determined based on 
the Fund's selection criteria as outlined in Rule .0202 of this 
Subchapter. 

£b) The maximum loan amounts shall be calculated as 
defined in G.S. 122A-5.13. 

(c) Loans shall be amortizing and secured by a note and 
deed of trust. These loan documents shall provide for the 
acceleration of the debt in the event that a facility becomes 
subject to a negative administrative action by the North 
Carolina Division of Facility Services or the United States 
Health Care Financing Administration. 

(d) The North Carolina Housing Finance Agency shall 
charge a loan origination fee and a servicing fee to reim- 
burse actual costs. 

History Note: Authority G.S. 122A-5; 122A-5.1; 122A- 

5. 13; 

Temporary Adoption Eff. October 1 , 1996. 

SECTION .0200 - ADMINISTRATION 



.0201 APPLICATION PROCEDURES 

A request for proposals shall be published and other 
forms of public notice shall be used to solicit applications 
from eligible borrowers. 

History Note: Authority G.S. 122A-5; 122A-5.1; 122A- 

5. 13; ' 

Temporary Adoption Eff. October 1 , 1996. 

.0202 SELECTION PROCEDURE 

Applications for financial assistance shall be evaluated and 
selected using the following criteria in order to improve 
safety for the greatest number of vulnerable residents: 
(1) Financial need; and 

Percentage of nonambulatory and disabled resi- 
dents: and 

Estimated economic life of the facility; and 
Reliability of current fire protection systems and 
services; and 



(2) 

01 
£4) 



(5) Degree to which proposed costs are below the 
program maximums per square foot; and 

(6) Receipt by the facility of any negative administra- 
tive action taken by the North Carolina Division 
of Facility Services or the United States Health 
Care Financing Administration. 

History Note: Authority G.S. 122A-5; 122A-5.1; 122A- 

5. 13; ' 

Temporary Adoption Eff. October 1 , 1996. 



1154 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



TEMPORARY RULES 



.0203 DISBURSEMENT OF FUNDS 

Loan funds shall be disbursed on a reimbursement basis. 



Lxian funds shall not be disbursed until the installation of the 
fire protection system has been approved by the Division of 
Facility Services. 

History Note: Authority G.S. 122A-5; 122A-5.1; 122A- 

5.13; 

Temporary Adoption Eff. October 1 , 1996. 



^^■■^4 NORTH CAROLINA REGISTER October 15, 1996 1155 



APPROVED RULES 



This Section includes the Register Notice citation to Rules approved by the Rules Review Commission (RRC) at its 
meeting of September 19, 1996 pursuant to G.S. 150B-21. 17(a)(1) and reported to the Joint Legislative 
Administrative Procedure Oversight Committee pursuant to G.S. 150B-21. 16. The full text of rules are published 
below when the rules have been approved by RRC in a form different from that originally noticed in the Register or 
when no notice was required to be published in the Register. The rules published in full text are identified by an 
* in the listing of approved rules. Statutory Reference: G.S. 150B-21.17. 

These rules will become effective on the 31st legislative day of the 1997 Regular Session of the General Assembly 
or a later date if .■specified b\ the agency unless a bill is introduced before the 31st legislative day that specifically 
disapproves the rule. If a bill to disapprove a rule is not ratified, the rule will become effective either on the day 
the bill receives an unfavorable final action or the day the General Assembly adjourns. Statutory reference: G.S. 
150B-21.3. 



APPROVED RULE CITATION 



REGISTER CITATION TO THE 
NOTICE OF TEXT 



15A 


NCAC 


lOF 


.0303 


15A 


NCAC 


lOF 


.0310 


15A 


NCAC 


101 


.0001 * 


15A 


NCAC 


13C 


.0301 * 


15A 


NCAC 


13C 


.0303 * 


15A 


NCAC 


13C 


.0305 * 


15A 


NCAC 


13C 


.0307 * 


15A 


NCAC 


13C 


.0308 * 


17 


NCAC 


OIC 


.0504 * 


17 


NCAC 


OIC 


.0506 * 


19A 


NCAC 


02D 


.1102 * 


19A 


NCAC 


02D 


.1108 * 


I9A 


NCAC 


02D 


.1111 * 


19A 


NCAC 


03 E 


.0501 * 


I9A 


NCAC 


03 E 


.0502 * 


19A 


NCAC 


03 E 


.0510 * 


19A 


NCAC 


03 E 


.0512 * 


19A 


NCAC 


03 E 


.0513 * 


19A 


NCAC 


03 E 


.0514 * 


19A 


NCAC 


03 E 


.0515 * 


19A 


NCAC 


03 E 


.0518 * 


19A 


NCAC 


03 E 


.0519 


19A 


NCAC 


03 E 


.0522 * 


19A 


NCAC 


06 B 


.0412 * 


21 


NCAC 


69 


.0101 


21 


NCAC 


69 


.0103 


21 


NCAC 


69 


.0104 


21 


NCAC 


69 


.0201 * 


21 


NCAC 


69 


.0202 


21 


NCAC 


69 


.0301 


21 


NCAC 


69 


.0306 * 


21 


NCAC 


69 


.0308 


21 


NCAC 


69 


.0501 * 



11:06 NCR 
11:06 NCR 
not required 



:06 NCR 
:06 NCR 
:06 NCR 
:06 NCR 
:06 NCR 
not required 
not required 



05 NCR 
05 NCR 
05 NCR 
07 NCR 
07 NCR 
07 NCR 
07 NCR 
07 NCR 
07 NCR 
07 NCR 
07 NCR 
07 NCR 

07 NCR 
05 NCR 

08 NCR 
08 NCR 
08 NCR 
08 NCR 
08 NCR 
08 NCR 
08 NCR 
08 NCR 
08 NCR 



150B-l(d) 
150B-l(d) 



356 

356 

, G.S. 150B-21.5fb) 

357 

357 

357 

357 

357 

, G.S. 

, G.S. 

270 

270 

270 

405 

405 

405 

405 

405 

405 

405 

405 

405 

405 

270 

523 

523 

523 

523 

523 

523 

523 

523 

523 



TITLE 15A - DEPARTMENT OF ENVIRONMENT, 
HEALTH, AND NATURAL RESOURCES 



SUBCHAPTER 101 - ENDANGERED 
AND THREATENED SPECIES 



CHAPTER 10 - WILDLIFE RESOURCES 
ANT) WATER SAFETY 



.0001 DEFINITIONS AND PROCEDURES 

{et) — For tho purpose s of thi i s Subchapter, tho following 



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APPROVED RULES 



dofinitions shall apply: 

(4^ "Boot availablo coi e ntifio ovid e no e " is th e oxi o ting 

biologioal, oh e mioal. and phyoioal data on th e 
distribution, status, abundance, and population 
dynamics of a wild animal spcxjios and on the 
Duffioionoy or insuffioi e noy of the biological and 
phyoioal featur e s of a critical habitat that hav e 
boon colloctod and analyzed by competent biolo 
gists using objective, scientific methods. 

(S) "Biological and phyoical f e atureo" ar e th e known 

parom e toro and chamct e riotioo of a critical habitat 
nooossar)' to sustain essential life processes of a 
wild animal spocieo. 

(5) "ConDon'ation of a prot e ct e d animal op e ci e s" is 

defined by G.S. 113 331(1). 

(4) "Conservation plan" shall bo a written plan dcvcl 

opod by the Wildlife Resources Commission using 
its r e Gouroea and e xp e rtise in th e biolog i cal and 
e cological sci e nc e s with input from oth e r agencies 
that documents problems in the biological and 
physical features of a critical habitat and identifies 
possible remedi e s. 

fA) The cono e r < 'ation plan shall contain th e b e st 

available scientific evidence that forms the 
basis for designation of the critical habitat 
and may contain r e comm e nd e d actions to 
be tjik e n for opocial oonG e p . 'ation. prot e o 
tion, and management of the critical habi 
tatr 

(B) The cono e r < 'ation plan may contain mor e 

than on e critical habitat if the threat s to th e 
habitatfl and the endangered and threatened 
wild animal species occupying them are 
s imilar. 

fG) TTi o cons e r . 'ation plan shall b e availabl e for 

public roviev i ' and comment. 

(5) "Critical habitat" means any habitat cssontial to 

the cons e rvation of a prot e ct e d animal sp e ci e s 
list e d ao e ndang e r e d or thr e at e ned in Rul e .0003 
or .000 4 of this Subchapter. 

(A) Critical habitat shall include areas within 

th e occupi e d — ef — pot e ntial — g e ographical 
rang e of a prot e ct e d animal s p e ci es or oth e r 
critical areas that contain or i mpact the 
biological and physical features ossontial to 
th e conser i 'ation — of a protected — animal 
spocieo and for which op e cial oono e p . 'ation. 
protection, and monagomont actions may be 
required. 

(B) Critical habitat s hall not includ e th e e ntir e 

occupi e d or potential g e ographical rang e of 
a protected animal s jjccie s or all areas that 
impact upon a protected animal — species 
unless the best as'ailabl e sci e ntific e vid e nc e 
indicat e s that opeoial oonD e r^'ation, prot e o 
tion, and management of the area or the 
ontiro range is essential to tho conser i 'ation 



(fef 



proced 



of a protect e d animal species. 

fG) Critical habitats d e oignations shall b e li s t e d 

in this Subchapt e r and shall include on 
accurate description of the habitats and 
their — boundaries. — the — endangered — and 
threatened wild animal s peci es occupying 
th e habitat s , and th e r e ason and ba s i s for 
designation. 

{&) "Life processes" are those biological functions of 

a wild animal species essential to th e h e alth and 
s urvival of individual organisms and p e rp e tuation 
of a wild animal species. 

fP) "Protected animal" is defined in G.S. 113 331(5). 

(84 "Sp e cial oonoep i 'ation. prot e ction, and manag e 

m e nt" ar e m e asur e s that ma)' b e tak e n and r es tric 
tions that may be imposed nccossar)' to pre s erv e 
or restore the essential biological and physical 
features of a critical habitat. 

{9^ "Sp e ci es " — means — the — taxonomic — grouping — ef 

wildlife, the sexually mature member s of which 
interbreed and reproduce their own kind. 

f+O) "Wild animal" io d e fin e d in G.S. 113 331(10). 

For th e purpos e s of this Subchapt e r, the following 
ures apply for the designation of critical habitat. 

(4^ The Wildlife Resources Corrunission shall under 

tak e de s ignation of critical habitat with th e advic e 
and upon the recomm e ndation of th e Nongam e 
Wildlife Advisory Committee and shall base any 
decision to designate critical habitat upon tho host 
availabl e sci e ntific e vid e nc e . 

(3) Upon r e c e iving th e r e comm e ndation — from th e 

Nongame — Wildlife — Advisor>' — Committoo — thef 
designation of critical habitat is essential to the 
cons e rvation of a prot e ct e d animal s p e oi e o list e d 
as e ndang e r e d or thr e at e n e d pursuant to Rul e 
.0003 or .000 4 of this Subchapter, and upon 
finding sufficient evidence in the recommendation 
to warrant furth e r consid e ration of designation, 
th e Wildlife Re o ouro eo Commission shall publish 
in tho North Carolina Register notice of public 
hearing and intent to dosignato the area as critical 
habitat. 

(3^ At th e tim e of publication of th e notic e of th e 

public hearing on designation of critical habitat, 
the best available soiontific evidence upon which 
th e propos e d d e signation i s ba se d shall b e avail 
abl e for public r e vi e w and shall b e provided to 
other agencies. 

(4) TTie Wildlife Resource s Commission shall base its 

decision to de s ignat e or not d e signate a critical 
habitat solely upon th e b e st availabl e ooientifio 
evidence and information in the record of the 
public hearing proceedings pertinent to the deter 
mination of wh e th e r or not the critical habitat is 
e ss e ntial — for th e cono e p . 'ation — of a prot e ct e d 

animal species. Considerations related to tho 

appropriatonoss — &f — i mplementation — of special 



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1157 



APPROVED RULES 



{^ 



oongop i 'ation. protix i tion. and monagomont aotiono 

vvhJoh may bo r e oommondiad in any cubooquontly 

dovolopod c!onoor . 'ation plan ohall not b a ar upon 

tho dccioion to dooignatc or not dooignato a critical 

habitat. 

Following tho d e oignation of a oritioal habitat, th e 



Wildlif e — RoGouro e e — CommiDoion — shaH — invit e 
roprooontativoo of intorootcd govommontal agon 
cioo 'A'ith juriodiction over moaauros and rootric 
tions that could offoot cpocial oonoor - 'ation, pro 
tootion. and monagomont of th e oritioal habitat to 
participate in dcvolopmont of a draft conocr i 'ation 
plan for tho listed critical habitat. — Each govern 
montal agency involved in developm e nt th e draft 
cono e n^ation plan shall oonoid e r the range of 
impacts of proposed special con i scr i 'ation. protec 
tion. and management moasuroa in the plan that 
oomo und e r its jurisdiction and that aff e ot th e 
public intoroot and shall address thooo impacts in 
tho plan. 

(^3 Upon completion of the draft conoop . 'ation plan, 

the Wildlif e R e sourc e c Commicoion shall publish 
in the North Carolina Regist e r notice of th e 
availability' of tho draft conser i 'ation plan for 
public review and notice of public hearing to 
rec e ive public comm e nt on the appropriatonoos 
and various impacts of tho oonser . 'ation, prot e c 
tion. and management provisions of the draft 
con3on . 'ation plan. 

fT-^ The Wildlife R e sources Commission and oth e r 

gov e rnm e ntal agenci e s contributing to th e man 
agomont and conser . 'ation strategy proposed for 
any designated critical habitat shall provide at tho 
time of pr e s e ntation of the cono e r . 'ation plan on 
opportunit)' for th e public and any interested party 
to present pertinent information and comments 
about ooonomic, social, ecological or other im 
pacts that may result from implem e ntation of 
special conoer i 'ation. protection, and manag e m e nt 
measures reoommcnded in tho conser i 'ation plan. 

(8) Each governmental agency affected by special 

oons e p i 'ation. prot e ction, and management moa 
sures contain e d in th e cons e r i 'ation plan for a 
critical habitat shall bo invited to participate in tho 
publie — hearing — procoss. — (e — consid e r — the — best 
availabl e soi e ntifio e videnc e and th e r e cord of th e 
public hearing proc ee dings, and to take appropri 
ate actions under the agency's jurisdictional and 
procO'dural authorities. 

History Note: Authority G.S. 113-132: 113-134: 113-331; 

113-3'33; 113-334: 113-336; 143-239; 

Eff. June 11, 1977; 

Amended Eff. August 1, 1988; 

RRC Objection due to Lack of statutory authority Eff. August 

18, 1994: 

Amended Eff. October 1, 1994; 



Repealed Eff. March 2. 1997. 

CHAPTER 13 - SOLID WASTE MANAGEMENT 

SUBCHAPTER 13C - ENACTIVE HAZARDOUS 
SUBSTANCES AND WASTE DISPOSAL SITES 

SECTION .0300 - VOLUNTARY REMEDIAL 

ACTION OVERSIGHT BY REGISTERED 

ENVIRONMENTAL CONSULTANTS 

.0301 DEFTNTTIONS 

Any word or phrase used in the rules in this Section 
which is defined in G.S. 130A. Article 9 shall have the 
meaning provided therein. TTie following words and 
phrases shall have the following meanings: 

(1) "Applicant" means an environmental consulting or 
engineering firm seeking Department approval to 
act as a Registered Environmental Consultant. 

(2) "Applicant RSM" means an individual proposed 
by an applicant to fill the role of Registered Site 
Manager. 

(3) "Registered Environmental Consultant" or "REC" 
means an environmental consulting or engineering 
firm approved to implement and oversee voluntary 
remedial actions pursuant to G.S. 130A-310.9(c). 

(4) "Registered Site Manager" or "RSM" means the 
key person or persons approved by the Depart- 
ment to manage all site activities and make certifi- 
cations on behalf of the Registered Environmental 
Consultant in its role as consultant to responsible 
parties for implementation and oversight of a 
voluntary remedial action pursuant to G.S. 130A- 
310.9(c). 

(5) "Remediating Party" means any site owner, 
operator, or responsible party engaging in a 
voluntary remedial action pursuant to G.S. 130A- 
310.9(c). 

(6) "Request for Approval" means the application and 
qualifications documentation package which must 
be submitted by an environmental consulting or 
engineering firm to the Department so that the 
Etepartment may determine an applicant's eligibil- 
ity to operate as a Registered Environmental 
Consultant. The Department shall make available 
a format for submission of such information. 

(7) "Source Area" means any area of sludge, soil, 
sediment, or other solid medium contaminated by 
a release of one or more hazardous substances. 

(8) "Voluntary Remedial Action" is a remedial action 
as defined in G.S. 130A-310(7) conducted volun- 
tarily by an owner, operator, or responsible party 
and undertaken with the approval of the Depart- 
ment pursuant to G.S. 130A-3 10.9(c). 

History Note: Authority G.S. I30A-3 10. 12(b); 
Eff. April 1. 1997. 



1158 



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APPROVED RULES 



.0303 APPROVAL OF REGISTERED 

ENVIRONMENTAL CONSULTANTS 

(a) To qualify for Department approval as an REC. an 
applicant shall complete and submit a sworn Request for 
Approval form, available from the Department, demonstrat- 
ing that the applicant meets the requirements contained in 
this Section. The Request for Approval form shall set forth 
the qualifications of aU persons the applicant wishes to 
qualify as RSMs. 

(b) Applicants shall supply the names and telephone 
numbers of previous government and industry clients and 
copies of actual work products to verify experience, if 
requested by the Department. The Department may require 
applicants to supp ly additional information to clarify that 
provided on the Request for Approval form. Those appli- 
cants not complying with such requests shall not be ap- 
proved to perform work pursuant to the rules in this 
Section. 

(c) An REC shall promptly notify the Department if the 
nature of its business changes, if it no longer meets the 
requirements for approval under this Section due to change 
in personnel, or for any other reason, or if it discovers that 
any information it submitted in any Request for Approval is 
or was incorrect. 

(d) Should a Department-approved RSM leave the 
emplovment of an REC or change employment within an 
REC. an REC shall, no later than 30 days prior to the 
change, submit the name and qualifications of another 
person to perform the role of the RSM. If an REC does not 
receive 30 days notice by an RSM of the RSM's intended 
change in employment, the REC shall notify the Department 
within 24 hours of the RSM providing such notice and 
within 30 days of the RSM's notice to the REC, submit to 
the Department the name and qualifications of another 
person to perform the role of the RSM. The Department 
shall determine whether the proposed replacement qualifies 
as an RSM. An REC may pro pose amendments to its 
approval as an REC to add or delete RSMs. 

(e) The Department shall notify a pplicants in writing 
whether they are approved to conduct business as an REC. 
No applicant may represent itself, or work, as an REC 
without written Department approval. 

(0 An REC's approval shall be valid for five years 
unless revoked earlier by the Department. 

(g) The Department shall make available to the general 
public a list of aM approved RECs. 

History Note: Authority G.S. 130A-3 10. 12(h); 
Eif. April 1. 1997. 

.0305 STANDARDS OF CONDUCT FOR 
REGISTERED ENVIRONMENTAL 
CONSULTANTS 

(a) The REC and its RSMs shall comply with the 
following standards of professional competence. RECs 
failing to do so shall be disqualified from performing work 
as an REC pursuant to this Section and shall be subject to 



any other applicable form of enforcement. 

(1) An RSM shall render a waste site cleanup activity 
opinion only when he or she has directly reviewed 
the work to ascertain whether the completed work 
complies with this Section. 

(2) The RSM shall perform his or her services only 
in areas of Ins or her competence and shall not 
render a decision on any assessment or cleanup 
plan or document dealing with subject matter for 
which he or she lacks competence by virtue of 
education or experience. If a site assessment or 
cleanup activity opinion requires expertise outside 
the RSM's field of expertise, the RSM shall 
render such an opinion relying in part upon the 
advice of one or more professionals having rele- 
vant competence. 

£b} TTie REC and its RSMs shall comply with the 
following standards of professional responsibility. RECs 
failing to do so shall be disqualified from performing work 
as an REC pursuant to this Section and shall be subject to 
any other applicable form of enforcement. 

(1) An REC shall at all times recognize its primary 
obligation is to protect public health, safety and 
welfare and the environment in tlie performance 
of professional services as an REC. 

(2) If an REC acting pursuant to this Section identi- 
fies an imminent hazard at a site at which U is 
providing professional services pursuant to the 
rules in this Section U shall, unless the REC is 
certain the remediating party has provided such 
notice, within 24 hours of discovery, notify the 
Department: 

(A) of tlie hazard; 

£B) whether the remediating party has agreed to 

take corrective action; and 
(C) what action, if any, has been taken. 

(3) If an REC acting pursuant to this Section deter- 
mines hazardous substances have migrated to 
property adjoining property containing a source 
area, or determines there are sensitive environ- 
ments or mixed wastes (commingled radioactive 
and chemical wastes) on the site, it shall, unless 
the REC is certain the remediating party has 
provided such notice, within 24 hours of discov- 
ery, notify the Department. 

(4) In providing professional services all RSMs shall: 

(A) exercise independent professional judge- 
ment; 

(B) follow the requirements and procedures set 
forth in applicable provisions of this Sec- 
tion; and 

(C) act with reasonable care and diligence, and 
apply the knowledge and skill ordinarily 
required of RSMs in good standing in the 
State at tlie time the services are per- 
formed. 

(5) If, subsequent to the date an REC renders a waste 



11:14 



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October 15, 1996 



1159 



APPROVED RULES 



site cleanup activity opinion, anyone employed by 
the REC that rendered the opinion learns that 
previously unconsidered facts, data or other 
information may support or lead to a different 
opinion, the REC shall promptly notify, in writ- 
ing, the remediating party and the Department. 

(6) If, subsequent to the date of its engagement, a 
successor REC learns of material facts, data or 
other information that existed as of the date of 
any predecessor REC's waste site cleanup activity 
opinion but was not disclosed m that opinion, the 
successor REC shall promptly notify, in writing. 
the remediating party and the Department. 

(7) An REC shall not allow the use of its name or the 
names of its RSMs by. or associate in a business 
venture with, any person or firm which an REC 
knows or should know is engaging in fraudulent 
or dishonest business or professional practices 
relating to the professional responsibilities of the 
REC. 

(8) The REC shall be objective and truthful in all 
professional reports, public statements or testi- 
mony, and shall include all relevant and pertinent 
information in the reports, statements, or testi- 
mony when the result of an omission would or 
reasonably could lead to a fallacious conclusion. 

(9) An REC shall not falsify or permit misrepresenta- 
tion of an RSM's academic or professional quali- 
fications, and shall not misrepresent or exaggerate 
an RSM's degree of responsibility in, or for, the 
subject matter of prior assignments. 

( 10) RECs shall comply with all applicable provisions 
of law and regulation. 

(11) All RECs shall have knowledge of this Section. 

History Note: Authority G.S. 130A-3 10. 12(b): 
Eff. April 1. 1997. 

.0307 DEPARTMENTAL AUDITS AND 
INSPECTIONS 

(a) The Department may conduct random or targeted 
audits of any REC. remediating party, response action or 
site which is subject to this Section. 

(b) During Departmental audits of voluntary remedial 
actions, the Department may: 

(1) request that the person who has performed the 
response action provide a written explanation, or 
other supporting evidence, to demonstrate compli- 
ance with this Section and other applicable re- 
quirements; 

(2) request that the person who has performed the 
response action or who is the subject of the audit 
appear at one of the Department's offices for an 
interview to provide an oral explanation, or other 
evidence, to demonstrate compliance with this 
Section and other applicable requirements (any 
person requested to appear for an interview may 



(3) visit a site or ; 



(4} 



(5} 



be accompanied by an attorney or other represen- 
tative); 

visit a site or other location to determine whether 
an REC, remediating party, response action or 
site is in compliance with this Section and other 
applicable requirements; 

investigate, take samples at a site and inspect 
records, conditions, equipment or practices mate- 
rial to the response action, or property related to 
the site; or 

take any other action the Department deems 
necessary to determine whether response actions 
have been performed in compliance with this 
Section and other applicable requirements. 

(c) Remediating parties shall provide financial assurance, 
by paying an annual administration cost, to participate in the 
voluntary remedial action program under this Section. TTiis 
payment shall be set by the Department based on the 
expected cost of auditing voluntary remedial actions and 
shall be used to offset that cost. Remediating parties 
providing such monies shall pay any shortfall, or be 
reimbursed any remainder not expended by the Department, 
annually. 

(d) Based on audit findings, the Department may termi- 
nate a site's eligibility for the voluntary remedial action 
program, disqualify an RSM or REC from work on a site or 
from the program, and take any other applicable enforce- 
ment action. 

History Note: Authority G.S. 130A-3I0.9(b}; 
130A-3 10. 12(b): 
Eff. April 1. 1997. 

.0308 CLEANUP LEVELS 

(a) RECs shall ensure that the Department's ascertain- 
ment of the most nearly applicable cleanup standards as 
would be applied under CERCLA/SARA are met. 

£bj Characterization of risks to health, safety, public 
welfare, and the environment is not required under this 
Section for a disposal site, environmental medium, or 
chemical for which response actions have successfully 
reduced concentrations of hazardous substances to on-site 
natural background levels. 

History Note: Authority G.S. 130A-3 10.3(d): 
130A-310. 12(b): 
Eff. April 1. 1997. 

TITLE 17 - DEPARTMENT OF REVENUE 

CHAPTER 1 - DEPARTMENTAL RULES 

SUBCHAPTER IC - GENERAL ADMINISTRATION 

SECTION .0500 - FORM OF PAYMENT 

.0504 EFT GENERAL REQUIREMENTS 



1160 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



APPROVED RULES 



(a) Taxpayers who paid one million two hundred thou- 
sand dollars ($1,200,000) or more of Withholding of 
Income Taxes from wages of individuals levied under 
Chapter 105 Article 4A during the selection period shall 
remit payments due and payable after January 1, 1994 by 
electronic funds transfer. Taxpayers who paid two hundred 
forty thousand dollars ($240,000) or more of Withholding 
of Income Taxes from wages of individuals levied under 
Chapter 105 Article 4A during the selection period shall 
remit payments due and payable after January 1, 1996 by 
electronic funds transfer. 

(b) Taxpayers who paid four hundred thousand dollars 
($400,000) or more of Corporate Income Tax who are 
required to make installment payments of Estimated Income 
Tax under Chapter 105 Article 4C during the selection 
period shall remit payments due and payable after January 
1, 1994 by electronic funds transfer. Taxpayers who paid 
two hundred forty thousand dollars ($240,000) or more of 
Corporate Income Tax who are required to make installment 
payments of Estimated Income Tax under Chapter 105 
Article 4C during the selection period shall remit payments 
due and payable after January 1, 1996 by electronic funds 
transfer. 

(c) Taxpayers subject to the following tax types who paid 
one million fwo hundred thousand dollars ($1,200,000) or 
more during the selection period shall remit payments due 
on or after July 1, 1994 by electronic funds transfer: 

(1) Alcoholic Beverage Excise Taxes payable under 
Chapter 105 Article 2C. 

(2) Utilities Franchise Taxes levied under G.S. 105- 
116 or G.S. 105-120. 

(3) Utilities Sales Taxes due under the provisions of 
G.S. 105-1 64. 4(a)(4c). 

Taxpayers subject to the above tax types who paid two 
hundred forty thousand dollars ($240,000) or more during 
the selection period shall remit payments due on or after 
January 1, 1996 by electronic funds transfer. 

(d) Except as provided in Subparagraph (c)(3) of this 
Rule, taxpayers who paid one million two hundred thousand 
dollars ($1,200,000) or more in Sales and Use Tax levied 
under Chapter 105 Article 5 and Articles 39, 40, and 42 of 
Subchapter VIII during the selection period shall remit 
payments due on or after October 1 , 1 994 by EFT. Except 
as provided in Subparagraph (c)(3) of this Rule, taxpayers 
who paid two hundred forty thousand dollars ($240,000) or 
more in Sales and Use Tax levied under Chapter 105 Article 
5 and Articles 39, 40, and 42 of Subchapter VIII during the 
selection period shall remit payments due on or after 
October 1, 1995 by EFT. 

(e) Taxpayers who paid two hundred forty thousand 
dollars ($240,000) or more in Motor Fuels Taxes levied 
under Chapter 105 Article 36C and 36D of Subchapter V 
during the selection period shall remit payments due on or 
after July 1, 1995 by EFT. 

(f) Taxpayers who paid one million two hundred thou- 
sand dollars ($1,200,000) or more of Tobacco Products Tax 
levied under Chapter 105 Article 2A during the selection 



period shall remit payments due on or after January 1, 1995 
by electronic funds transfer. Taxpayers who paid two 
hundred forty thousand dollars ($240,000) or more of 
Tobacco Products Tax levied under Chapter 105 Article 2 A 
during the selection period shall remit payments due on or 
after January 1, 1996 by electronic funds transfer. 

(g) Taxpayers who paid one million two hundred thou- 
sand dollars ($1,200,000) or more of Soft Drink Tax levied 
under Chapter 105 Article 2B during the selection period 
shall remit payments due on or after January 1, 1995 by 
electronic funds transfer. Taxpayers who paid two hundred 
forty thousand dollars ($240,000) or more of Soft Drink Tax 
levied under Chapter 105 Article 28 during the selection 
period shall remit payments due on or after January 1 , 1 996 
by electronic funds transfer. 

(h) Taxpayers who paid two hundred forty thousand 
dollars ($240.000) or more of Insurance Taxes levied under 
G.S. 105 Article 8B during the selection period shall remit 
payments due on or after January \^ 1996 by electronic 
funds transfer. 

(ij fh) TTie determination as to which taxpayers shall be 
subject to the remittance provisions to the rules in this 
Section shall be made by the Department, on a tax by tax 
basis, and shall be based on the average amount of tax paid 
during any 12 consecutive month period preceding the 
implementation of any new application or review of the 
payment requirement. 

(j) fi) The Department shall notify the selected taxpayers 
of the requirements of these Rules by first class mail to their 
last address of record. 

(k) (j) The Department shall provide the selected 
taxpayers with forms necessary for registering to make 
payments for the taxes through EFT. The Department shall 
provide an explanation of the payment options available. 

OJ fk) The taxpayer shall register to make payments for 
the taxes through EFT, and shall select a payment option 
subject to approval by the Department in accordance with 
Rule .0508(13). 

(m) fl) The Department shall provide technical assis- 
tance and guidance to the selected taxpayers concerning the 
payment of taxes through EFT. An EFT hotline shall be 
available to the taxpayers from 8:(K) a.m. through 5:00 
p.m.. Eastern Standard Time, each business day, with 
exception of State holidays. 

History Note: Authority G.S. 105-241; 105-262; 

Eff. October 1, 1993; 

Amended Ejf. October 1, 1996; May 1, 1995; March 1, 

1995; November 1, 1994; 

Temporary Ejf. December 20, 1995; 

Amended Ejf. March ]_, 1997; October 1. 1996. 

.0506 VOLUNTARY EFT PROGRAM 
PARTICIPATION 

(a) The following taxpayers not subject to remittance 
provisions of 17 NCAC IC .0504 may elect to participate 
in the EFT Program on or after January 1, 1995: 



11:14 



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October 15, 1996 



1161 



APPROVED RULES 



(1) Taxpayers required to file returns and pay With- 
holding of Income Taxes from wages of individu- 
als under tho "Thr a o Banlting Day" provicion ao 
required by G.S. 105 163.6 Article 4A. 

(2) Taxpayers required to remit installment payments 
of Estimated Corporate Income Tax under Chap- 
ter 105 Article 4C. 

(3) Taxpayers who remit Alcoholic Beverage Excise 
Taxes payable under Chapter 105 Article 2C. 

(4) Taxpayers who remit Utility Sales Tax payable 
under the provisions of G.S. 105-164.4 (a)(4c). 

(5) Taxpayers who remit Utility Franchise Tax 
payable under G.S. 105-116 or G.S. 105-120, 
excluding telephone companies who remit less 
than three thousand dollars ($3,000.00) per 
month. 

(6) Taxpayers who are directed by the Secretary or 
volunteer to file repKDrts for Sales and Use Tax on 
semi-monthly basis under G.S. 105-164.16(15). 

(7) Taxpayers who remit Motor Fuels Taxes levied 
under Chapter 105 Article 36 36C and 3#A 36D . 

(8) Taxpayers who remit Tobacco Products Tax 
levied under Chapter 105 Article 2A. 

(9) Taxpayers who remit Soft Drink Tax levied under 
Chapter 105 Article 2B. 

(10) Taxpayers who remit Insurance Taxes levied 
under Chapter 105 Article 8B. 

(b) Taxpayers electing to voluntarily participate in the 
EFT Program must shall complete and return Form AC- 
EFT-IOOV, Electronic Funds Transfer Authorization 
Agreement for Voluntary Participants. 

(c) Taxpayers who elect to participate in the EFT 
Program shall be required to remit payments electronically 
for a minimum of twelve consecutive months. A taxpayer 
may withdraw from the EFT Program after 12 months by 
giving the Department 45 days written notice. 

(d) Taxpayers who elect to participate in the EFT 
Program shall be subject to the penalty provisions stated in 
G.S. 105-236(la) and (lb). 

(e) Taxpayers electing to participate in the EFT Program 
shall be subject to the same rules and guidolinos as taxpay- 
ers subject to the remittance provisions of 17 NCAC IC 
.0504. 

History Note: Authority G.S. 105-236; 105-241; 105-262; 

Eff. October 1, 1993; 

Amended Ejf. March 1, 1995; November 1, 1994; 

Temporary Ejf. December 20, 1995; 

Amended Ejf. March i, 1997. 

TITLE 19 A - NORTH CAROLINA DEPARTMENT 
OF TRANSPORTATION 

CHAPTER 2 - DIVISION OF HIGHWAYS 

SUBCHAPTER 2D - HIGmVAV OPERATIONS 



SECTION .1100 - DISADVANTAGED BUSINESS 

ENTERPRISE, MINORITY BUSINESS 

ENTERPRISE, AND WOMEN BUSINESS 

ENTERPRISE PROGRAMS FOR 

HIGHWAY AND BRIDGE 
CONSTRUCTION CONTRACTS 

.1102 DEFINmONS 

For purposes of the rules in this Section, the following 
terms shall apply: 

(1) Socially and economically disadvantaged individ- 
ual means a person who is a citizen or lawful 
f^ermanent resident of the United States and who 
is: 

A Black American; 



(el 

m 



A Hispanic American; 
An Asian-Pacific American; 
A Native American; 
An Asian-Indian American; 
A Woman; 

A member of another group or an individ- 
ual found to be economically and socially 
disadvantaged by the Small Business Ad- 
ministration under Section 8(a) of the Small 
Business Administration Act, as amended 
ri5 U.S.C. 637(d)1; or 
(h) A member of another group, or an individ- 
ual found to be economically and socially 
disadvantaged by the North Carolina De- 
partment of Transportation using the crite- 
ria prescribed in the Small Business Ad- 
ministration Act, as amended [15 U.S.C. 
637(d)1. 

(2) Disadvantaged Business Enterprise (DBE) means 
a small business concern, as defined pursuant to 
Section 3 of the Small Business Act (15 U.S.C. 
632) and implementing regulations which is: 

(a) Owned and controlled by one or more 
socially and economically disadvantaged 
individuals; 

(b) A firm which has been found to be socially 
and economically disadvantaged by the 
Small Business Act under the 8(a) pro- 
gram; or 

(c) A firm which has been certified as socially 
and economically disadvantaged by the 
North Carolina Department of Transporta- 
tion except that such term shall not include 
any concern or group of concerns con- 
trolled by the same socially and economi- 
cally disadvantaged individual or individu- 
als which has average annual gross receipts 
over the preceding three fiscal years in 
excess of fourteen million dollars 
($14.000,000) as adjusted by the Depart- 
ment for infiation. 

(3) An Owned and Controlled Business means a 



1162 



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October 15, 1996 



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APPROVED RULES 



£5} 
(6} 

m 



business: 

(a) Which is at least 51 percent owned by one 
or more eligible individuals, or in case of 
a publicly owned business at least 51 per- 
cent of the stock is owned by one or more 
eligible individuals; and 
Co) Whose management and daily business 
operations are controlled by one or more of 
the eligible individuals who own it^ 
(4) Eligible Individual means a socially and economi- 
cally disadvantaged individual as defined in this 
Rule on projects financed in whole or in part with 
Federal funds. On projects financed with non- 
Federal funds, eligible individual means a minor- 
ity or woman individual as defined in this Rule. 
Eligible Firm means a firm owned and controlled 
by an eligible individual as defined in this Rule. 
An eligible manufacturer means a firm owned and 
controlled by an eligible individual that operates 
or maintains a factory or establishment which 
produces on the premises the materials or supplies 
obtained by the contractor. 

An eligible regular dealer means a firm that owns, 
operates, or maintains a store, warehouse, or 
other establishment in which materials or supplies 
required for the performance of the contract are 
bought, kept in stock, and regularly sold to the 
public in the usual course of business. To be an 
eligible regular dealer, the firm must engage in, 
as its principal business and in its own name, the 
purchase and sale of products in question. A 
regular dealer in such items as steel, cement, 
gravel, stone, and petroleum products need not 
keep such products in stock if it owns and oper- 
ates distribution equipment. Brokers and packag- 
ers shall not be regarded as manufacturers or 
regular dealers within the meaning of this Rule. 
(8) Minority means a citizen or lawful permanent 
resident of the United States who is: 
(a) A Black American; 
Co) A Hispanic American; 
(c) An Asian-Pacific American; 
£d} A Native American; or 
(e) An Asian-Indian American. 
£9) Minority Business (MB) means a business firm 
which is owned and controlled by one or more 
minorities, except that such term shall not include 
any concern or group of concerns controlled by 
the same minority individual or individuals which 
has average annual gross receipts over the preced- 
ing three fiscal years in excess of fourteen million 
dollars ($14.000.000) as adjusted by the Depart- 
ment for inflation. 

(10) Woman means a citizen or lawful permanent 
resident of the United States who is female. 

(1 1) Women Business (WB) means a business firm 
which is owned and controlled by one or more 



women, except that such term shall not include 
any concern or group of concerns controlled by 
the same female individual or individuals which 
has average annual gross receipts over the preced- 
ing three fiscal years in excess of fourteen million 
dollars ($14.000,000) as adjusted by the Depart- 
ment for inflation. 

History Note: Authority G.S. 143B-348; 
Eff. April 30. 1997 . 

.1108 GOALS 

(a) For each highway or bridge construction project 
determined appropriate by the Department, a disadvantaged 
business enterprise goal or minority and women business 
enterprise goals shall be established. To be determined 
appropriate, project items of work shall include but not be 
limited to one or more of the following: clearing and 
grubbing; hauling and trucking; storm drainage; concrete 
and masonry construction; guardrail; fencing; landscaping; 
erosion control; reinforcing steel; utility construction; or 
pavement markers and markings. In determining the goal 
or goals, the Department will consider the approximate 
dollar value of the contract, the geographical location of the 
proposed work, the number of eligible firms in the geo- 
graphical area, and the anticipated value of the items of 
work to be included in the contract. Additionally, the 
Department shall consider the annual goals mandated by 
Congress and the North Carolina General Assembly. The 
goal or goals shall be prescribed in the project proposal as 
a percent of the bidder's bid price. 

(b) The Contractor shall exercise all necessary and 
reasonable steps to ensure that eligible firms participate in 
at least the percentage of the contract as required by the 
project proposal. 

History Note: Authority G.S. 136-28.4; 143B-348; 
Eff. April 3a, 1997. 

.1111 PERFORMANCE RELATED 

REPLACEMENT OF ELIGIBLE FIRMS 

The Department may allow replacement of an eligible 
firm for the following performance related reasons: 

(1) If an eligible firm listed by the contractor and 
submitted at the time of bidding does not perform 
in a satisfactory manner, the contractor shall make 
all necessary, reasonable efforts to replace the 
eligible firm with another eligible firm in the 
same category as the firm originally submitted. 

(2) Any substitution of eligible firms after award of 
the contract shall be approved by the Department. 
Tlie contractor shall submit any requests for 
substitutions through the Resident Engineer, and 
the request shall provide the basis or reason for 
the proposed substitution. In determining whether 
a substitution is appropriate, the Department shall 
consider the information submitted by the contrac- 



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October 15, 1996 



1163 



APPROVED RULES 



01 



tor, ipformation obtained from the eligible firm 
the contractor seeks to remove, the items of work 
remaining in the contract, and the timeliness of 
the proposed substitution. The substitute firm 
shall be on the Department's list of approved 
subcontractors. The list of approved subcontrac- 
tors shall be available at no cost from the Office 
of the State Contractual Services Engineer. N.C. 
DOT. PO Box 25201. Raleigh. NC 27611, tele- 
phone 919-733-7174. 

To demonstrate necessary, reasonable efforts, the 
contractor shall document the steps he has taken 
to replace eligible firms with other eligible firms. 
Such documentation shall include but not be 
limited to the following: 

(a) Copies of written notification to eligible 
firms that their interest is solicited in sub- 
contracting the work defaulted by the previ- 
ous subcontractor or in subcontracting other 
work in the contract; 

(b) Efforts to negotiate with eligible firms for 
specific subbids including at a minimum: 

(i) The names, addresses, and telephone 
numbers of eligible firms that were 
contacted; 
(ii) A description of the information 
provided eligible firms regarding the 
plans and specifications for portions 
of the work to be performed; 

(c) A statement of why additional agreements 
with eligible firms were not reached; 

(d) For each eligible firm rejected as unquali- 
fied, the reasons for the contractor's con- 
clusion; and 

(e) Efforts made to assist the eligible firms 
contacted, if needed in obtaining bonding 
or insurance required by the contractor. 

Failure of the contractor to demonstrate reason- 
able efforts to replace an eligible firm with an- 
other ehgible firm shall be just cause to disqualify 
the contractor from further bidding for a period of 
up to six months after notification by certified 
mail. 



History Note: Authority G.S. 13&28.4: 143B-348; 
Eff. April 30, 1997. 

CHAPTER 3 - DIVISION OF MOTOR VEHICLES 

SUBCHAPTER 3E - INTERNATIONAL 
REGISTRATION PLAN (IRP) SECTION 

SECTION .0500 - SAFETY RULES AND 
REGULATIONS 

.0501 CERTinCATE: VEHICLE 
IDENTinCATION: ETC 



I4i 



(ft) — A carrior which proposes to limit its introstnto for 
hir e op e rationo to oommoditi e o and D e r . 'ioeo or poso e ng e ro 
which arc oxompt under G.S. 63 260. or which propoi) e o to 
own vohiotos for tho purpooo of loasing snmo, shall apply to 
the Division in writing, on forms fumishod by tho Division, 
and obtain a c e rtificate of e x e mption. 

(b) — A o e rtifioat e of e x e mption for th e transportation of 
property may also bo authorized by tho Utilities Commission 
under G.S. 62 261(6) upon its own motion, or upon motion 
of any motor carri e r or any other party in int e r e ot. — Such 
motion shall fully and cl e arly state conditions e xisting which 
warrant oxomptions from rules and shall describe tho kind 
of proport)' to bo hauled and tho territory' to bo sor^'od. — A 
o e rtifioat e of e x e mption und e r this Paragraph will bo issu e d 
only after a car e ful inv e stigation by tho Utilitioo Commis - 

(a) (e) Passengers, fire-fighting equipment, medical and 
hospital supplies, food, feed, clothing, and other articles 
necessary for immediate relief of or direct prevention of 
fires, sickness, accident, storm, flood, or similar catastro- 
phes, may be transported by any person in any available 
vehicle without notice to or authority from the Utilities 
Commission or the Motor Carrier Regulatory Unit up>on 
issuance of an executive order from the Governor. The 
North Carolina Utilities Commission, however, has jurisdic- 
tion over household goods movers. 

(4^ — No e x e mption o e rtifioat e shall b e issu e d oxo e pt for 
purposes as designated in Paragraphs (a) and (b) of this 
R«lor 

(b) fe) A certificate of exemption may be oano e ll e d 
canceled upon notice to the holder without hearing for any 
one or more of the following causes: 

(1) for failure to mark for hire vehicles as required 
by Paragraph ff) {c} of this Rule; 

(2) for the transportation of passengers or property 
not exempt from rules; 

(3) for refusal to permit the Division's inspectors, 
up)on demand and display of proper credentials, to 
make examination of loaded trucks, the property 
being transported, and all books, records, and 
accounts relating to the transportation of property 
for hire; 

(4^ wh e n it shall b e d e t e rmin e d by th e Division that 

a cortificato of oxomption was obtained solely for 
purposes other than those enumerated in Para 
graphs (a) and (b) of this Rul e ; 

(4) (4) for failure of exempt for hire passenger 
carriers to keep on file with the Division proper 
evidence of insurance as required by the Utilities 
Commission; 

(5) (4^ for failure of exempt for hire passenger or 
property carriers to comply with the safety rules 
of the Division. 

(c) ff) Every vehicle operated under a certificate of 
exemption shall have printed on both sides thereof, in letters 
and figures not less than three inches high, the owner's 
name, or trade name, address, and certificate number unless 



1164 



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October 15, 1996 



11:14 



APPROVED RULES 



such vehicle is under permanent lease in which case only the 
certificate number of the lessor w4H shall appear. In case of 
a tractor-trailer unit, the marking Hwst shall be on the 
tractor. 

(d) fg) The lease of equipment with driver for use in 
private transportation of property is prohibited unless the 
following requirements are met: 

(1) the leased equipment must shall be exclusively 
committed to the lessee's use for the term of the 
lease; 

(2) the lessee must shall have exclusive dominion and 
control over the transportation service during the 
term of the lease; 

(3) the lessee must shall maintain liability insurance 
for any injury caused in the course of performing 
the transportation service; 

(4) the lessee muot shall be responsible for compli- 
ance with safety rules; 

(5) the lessee muot shall bear the risk of damage to 
cargo; and 

(6) the term of the lease Hwst shall be for a minimum 
period of 30 days. 

£el (it) Any person operating under a certificate of 
exemption using a leased or rented vehicle shall have the 
vehicle properly marked or placarded on both sides in letters 
and figures not less than three inches high, the lessee's 
name or trade name, address and certificate number. 

History Note: Filed as a Temporary Rule Eff. February 

11, 1986 for a Period of 120 Days to Expire on 

June 11, 1986; 

Authority G.S. 20-378; 

Eff. April 1, 1986; 

Amended Eff. January 1 , 1994; 

Transferred and Recodified from 19A NCAC 03D .0803 Eff. 

January 3, 1996; 

Amended Eff. April 30. 1997 . 

.0502 PURCHASE OF FOR HIRE LICENSE TAGS 

{et) — A "for hire liconso tag" ia a tag purcha s ed by a 
registrant hauling commoditios for compensation with on 
e x e mption o e rtifioat e within th e bord e rs of North Carolina, 
pursuant to th e r e quir e monto of G.S. 20 8 6. 

fb^ — A cortificQto of exemption for the transportation of 
property issued as provided in Rule .0803 constitutes 
approval by th e Division of the purchase of for hire tags for 
v e hicl e s own e d by and r e gi s t e r e d in th e nam e of th e party 
to whom such cortificato of exemption ia issucxl. — The 
oortificato of exemption must bo presented to the Division of 
Motor Vohioloo or its authoriz e d ag e nta wh e n purchasing for 
hire tags. 

fe4 A certificate of exemption for the transportation of 
passengers issued as provided in Rule .0803 Rule .0501 of 
this Section does not in itself constitute approval by the 
Division of the purchase of for hire tags for vehicles owned 
by the person to whom such certificate is issued. For hire 
tags may only be purchased by holders of exemption 



certificates for the transportation of passengers who are in 
full compliance with the insurance and safety rules of the 
Division. Vehicles of such carriers muot shall be registered 
with the Division as required by Rule .0 8 09 Rule .0507 of 
this Section and upon carrier's compliance with said 
insurance and safety rules, said vehicles will shall be 
approved by the Division of Motor Vehicles so that tags 
may be purchased, but not before. 

History Note: Filed as a Temporary Rule Eff. February 

11, 1986 for a Period of 120 Days to Expire on June 11, 

1986; 

Authority G.S. 20-86; 20-86.1; 20-378; 

Eff. April 1. 1986; 

Amended Eff. January 1 , 1994; November 1 , 1991; 

Transferred and Recodified from 19A NCAC 03D .0804 Eff. 

January 3, 1996; 

Amended Eff. April 30. 1997 . 

.0510 INTERSTATE CARRIERS/REGISTRATION 
OF CERTIFICATES: PERMFTS 

(ft) — Any motor carrier operating into, from, within, or 
through th e Stat e of North Carolina under authority' issu e d 
by the Interstate Commerce Commission shall file with the 
North Carolina Division of Motor Vohiolos and maintain a 
current r e cord of ouch authority' p e rmitting op e rations within 
th e bord e rs of this stat e and ouch motor carri e r shall not 
exercise such authority unless and until there shall have boon 
filed with and approved by the Division an application for 
th e registration of such authority and th e r e shall have boon 
oompliano e — with all oth e r r e quir e m e nt s — of Rul e — .0 8 12 
through Rule .0817, provided, however, that such motor 
carrier shall only bo requir e d to fil e with the Division that 
portion of its authority p e rmitting op e rations within the 
bord e rs of this stat e , and providing furth e r that ouoh motor 
carrier shall not bo required to filo with the Division 
omorgoncy — or temporary' — operating authority — having a 
duration of 30 cons e cutiv e days or l e ss, if ouch carri e r has 
regist e red ita authority and id e ntifi e d its v e hicl e s und e r th e 
provi si ons of Rule .0 8 13 and Rule .0 8 14. and furnished to 
the Division a telegram or other writton communication 
d e scribing such e m e rg e ncy or t e mpomr>' op e rating authority 
and stating that operation th e r e und e r s hall b e in full accord 
with the requirements of Rule .0 8 12 through Rule .0817. 

ih) — If a motor carrier fails to register and identify' its 
vehicles and driv e av r 'ay op e rations with th e Division und e r 
th e provisions of Rul e .0 8 13 and Rul e .0 8 11 for three 
con se cutive years, — the Division shall cancel — the motor 
carrior's registration of ICC operating authority' under those 
Rul e s upon 30 days' notic e to th e carri e r at it s la s t known 
address, and th e carrier shall not th e r e aft e r e x e rcis e it s ICC 
authority within tho borders of this state unless it shall have 
again registered such authority as proscribed by the provi 
sions of Rul e .0 8 12 through Rul e .0817. 

(a) Any motor Carrier operating into, from, within, or 
through the State of North Carolina under authority issued 
by the Interstate Commerce Commission shall: 



11:14 



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October 15, 1996 



1165 



APPROVED RULES 



(1) File with the North Carolina Division of Motor 
Vehicles; 

(2) Maintain a current record of authority permitting 
operations within the borders of this state; 

(3) File application of authority with DMV and 
receive approval of application; 

(4) Comply with all other requirements in Rules 
■0510 through .0515 of this Section. 

fb) A motor carrier shall only file with the DMV that 
portion of its authority which permits operations within the 
borders of this state. Such motor carrier shall not file with 
the Division emergency or temporary operating authority 
having a duration of 30 consecutive days or less if the 
carrier has registered its authority and identified its vehicles 
under the provisions of Rules .051 1 through .0514 of this 
Section. The carrier shall be in full accord with the 
requirements of .0510 through .0515 of this Section. 

History Note: Filed as a Temporary Rule Ejf. February 

11, 1986 for a Period of 120 Days to Expire on June 11, 

1986; 

Authority G.S. 20-378; 

Ejf. April 1. 1986; 

Transferred and Recodified from 19A NCAC 03D .0812 Eff. 

January 3, 1996; 

Amended Eff. April 30. 1997 . 

.0512 SINGLE STATE REGISTRATION 

(a) On or boforo tho 3 1 st day of January' of ooch calendar 
y e ar but not e arlier than th e pr e c e ding first day of Octob e r, 
int e rstate motor carri e rs shall apply to tho Division for th e 
issuance — of an — idontifioation — s tamp — or stamps — for th o 
registration and idontifioation of tho vohiclo or vohiclos 
which it int e nds to op e rat e within th e bord e rs of this stat e 
during the ensuing y e ar. — Such application shall b e aooompa 
niod by a filing foo in tho amount of ono dollar ($1.00) for 
each idontification stamp applied for. — Applications for 
annual — r e r e gistration — of such — motor v e hicl e s — shall — be 
aooompani e d by a filing f ee in th e amount of on e dollar 
($1.00) for oach identification stamp applied for. — The 
application for tho issuance of such idontifioation stamps 
s hall b e in th e form s et forth in Form B availabl e from th e 
Motor Carri e r R e gulator)' Unit and e ach application shall b e 
duly oomplotod and oxocutod by an official of tho motor 
carrier. — Provided, that vehicles of such carriors domiciled 
in anoth e r jurisdiction which e xt e nds r e ciprocity to v e hicl e s 
or carri e rs domiciled in North Carolina, pursuant to th e 
gonoral — reciprocal — agreements — herotoforo — ef — horoaftor 
ontorod into with tho North Carolina Commissionor of 
Motor V e hicl e s under Articl e lA of Chapt e r 20 of tho 
G e n e ral Statut e s, shall b e e x e mpt from th e paym e nt of 
registration foos required in this Paragraph to tho samo 
oxtont a s s uch jurisdiction exempt s vohiclos of carriors 
domicil e d in North Carolina from annual int e rstat e public 
utiliti e s v e hicle registration fees similar to th e f ee required 
in this Paragraph. 

(b) On or boforo the 3 1st day of Januar)' of each calendar 



year but not oarlier than the preceding first day of Octobor, 
e ach motor carri e r shall apply to th e National Aooociation of 
R e gulatory Utility Commission e rs for th e issuanc e of and 
obtain a sufficient supply of uniform idontifioation cab cards 
for uso in oonnoction with tho registration and idontification 
of th e v e hicl e or v e hicl e s which it intends to op e rat e within 
th e bord e rs of this stat e during the ensuing y e ar. — Cab oordo 
shall bo in tho form sot forth in Form D available from 
NARUC. 

ffr) — TTi e id e ntification stamp shall be in th e shap e of a 
square and shall not e xc ee d on e inch in diam e t e r and suoh 
stamp shall bear an expiration date of tho first day of 
February in tho succeeding calendar year. 

(d) TTi e registration and id e ntifioation of vehiolos and th e 
id e ntification s tamp e vid e ncing sam e and th e cab card 
prepared shall become void on tho first day of February in 
tho succooding calendar yoar unless such registration is 

t e rminat e d prior th e r e to. North Carolina id e ntifioation 

stamps shall b e ar on e xpiration dat e of the first day of 
February in the succeeding calendar year. — Sco G.S. 20 385. 

(a) The motor carrier shall keep a copy of the RS-3 
registration receipt in each of its for-hire motor vehicles. 
The motor carrier may transfer the receipt from one for-hire 
motor vehicle to another as long as the total number of for- 
hire motor vehicles operated in any jurisdiction and in all 
jurisdictions does not exceed the number stated on the 
receipt. 

fb) The RS-3 registration receipt shall become void on 
the last day of December in the calendar year. The motor 
carrier shall file for a new receipt annually. 

History Note: Filed as a Temporary Rule Eff. February 

11, 1986 for a Period of 120 Days to Expire on June 11, 

1986; 

Authority G.S. 20-378; 

Eff. April 1, 1986; 

Amended Eff. January 1 , 1994; 

Transferred and Recodified from 19 A NCAC 03D .0814 Eff. 

January 3, 1996; 

Amended Eff. April 30. 1997 . 

.0513 EVIDENCE OF LIABILITY SECURITY 

(a) All interstate motor carriers shall keep in force at all 
times public liability and property damage insurance in 
amounts not less than the minimum limits prescribed by the 
U.S. Department of Transportation or Interstate Commerce 
Commission. TTi e policy shall have attach e d th e r e to an 
ondorscmont (Form F. Uniform Motor Carrier Bodily Injur)' 
and Property Damage Liability Insurance Endorsement) and 
as e vid e nc e of such insurance, thoro There shall be filed 
with the Division a Form E (Uniform Motor Carrier Bodily 
Injury and Property Damage Liability Certificate of Insur- 
ance) as set forth in those Rules, the rules in this Section. 
A BMC91 (Uniform Motor Carrier Bodily Injury and 
Property Damage Certificate of Insurance) or a BMC91X 
(Motor Carrier Automobile Bodily Injury Liability and 
Property Damage Liability) shall be filed with the Division 



1166 



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11:14 



APPROVED RULES 



if a motor carrier has authority from U.S. DOT. 

(b) Notice of cancellation of insurance shall be given to 
the Division by the insurer, inourer by filing Form K 
(Uniform Notioo of ConcoUation of Motor Carrier Inauranoe 
Policioo). The BMC35 (Notice of Cancellation of Motor 
Carrier Insurance) shall be filed to cancel the BMC91 or 
BMC9IX. 

(c) Such motor carriers who have been permitted to post 
bond in lieu of insurance or who have qualified as 
self-insurers, under the rules and regulations of the Int e r 
otato Commoro e Commiooion, U.S. DOT, shall not engage 
in interstate commerce within the borders of this state unless 
and until such carriers have filed surety bonds (Form G, 
Uniform Motor Carrier Bodily Injury and Property Damage 
Liability Surety Bond) which have been accepted by the 
Division or a true and legible copy of the currently effective 
iGG U.S. DOT order authorizing such motor carrier to 
self-insure under the provisions of the Interstate Commerce 
Act. Notice of cancellation of surety bonds shall be given 
to the Division by filing Form L (Uniform Notice of 
Cancellation of Motor Carrier Surety Bond). 

(d3 — No ouch policy or bond shall b e acc e ptabl e unl e ss 
issu e d by an admittod company or a surplus linoo company 
aa pormittod in G.S. 58 16 1 and 58 21 20. Provided, if the 
motor carrier is not rogiatorod in this state and the insurance 
company or surety' company is a non admitt e d company, th e 
company shall e xecute a power of attorn e y authorizing th e 
commissioner to accept aeP i 'ice on its behalf of notice or 
process in any action upon the policy or bond arising out of 
an — aooid e nt — involving the motor carri e r — in this stat e . 
Further, th e company must bo qualifi e d in th e stat e wh e r e 
the motor carrier ia rogioterod. 

£d) A BMC91 or BMC91X shall not be accepted unless 
it is issued by an insurance company authorized by U.S. 
DOT. 

History Note: Filed as a Temporary Rule Eff. February 

11, 1986 for a Period of 120 Days to Expire on June 11, 

1986; 

Authority G.S. 20-378; 

Eff. April 1, 1986; 

Amended Eff. January 1 , 1994; November 1 , 1991; 

Transferred and Recodified from 19 A NCAC 03D .0815 Eff. 

January 3, 1996; 

Amended Eff. April 30. 1997 . 

.0514 ISSUANCE OF REGISTRATION RECEIPT 

(a) Identification stamps will not t>c iaaucd until a motor 
carrier ia in full complianco with all of the provisions of 
Rul e .0 8 12 through Rul e .0 8 17. 

(b) — Prior to op e rating a v e hicl e within th e bord e rs of 
North Carolina, the motor carrier shall place one of such 
identification a tampa on the back of the cab card in the 
square b e aring the name of this stat e in such mann e r that th e 
sam e cannot b e r e mov e d without d e facing it. — Th e motor 
carrier shall thereupon duly complete and execute the form 
of certificate printed on the front of the cab card so as to 



identify' itself and such vehicle, or driveaway operation and, 
in th e case of a v e hicl e l e as e d by the motor carri e r, such 
e xpiration dat e s hall not exceed th e e xpiration dat e of the 
lease. — The appropriate expiration date shall bo entered in 
the apace provided below the certifioate. — Such expiration 
dat e shall b e within a p e riod of 15 months from th e date of 
any id e ntification stamp or numb e r plac e d on the back 
thereof. — However, in the case of a vehicle leased by the 
motor carrier for 29 consecutive days' duration or loss, the 
carri e r may reus e th e cab card for th e sam e v e hicl e wh e n 
subsequently l e as e d for 29 cons e cutiv e days' duration or 
leas, if it enters in th e upp>er left hand comer of the front of 
the cab card the figure and words "29 day lease or less" and 
if it e nters an e xpiration dat e in th e space provid e d below 
th e c e rtificat e which shall b e within a p e riod of 15 months 
from the date the cab card is executed and shall not bo later 
in time than the expiration date of any identification stamp 
or numb e r plac e d on th e back th e r e of. 

(c) Th e cab card shall b e maintain e d in th e cab of such 
vehicle for V i hich prepared v . 'henovor the vehicle is operated 
under the authority' of the carrier identified in the cab card. 
{4) — A cab card s hall upon d e mand b e pr e s e nt e d by th e 
driv e r to any authoriz e d ag e nt or r e pr e s e ntativ e of th e North 
Carolina Division of Motor Vehicles. 

(e) Each motor carrier shall de s troy a cab card immedi 
Qt e ly upon its e xpiration e xc e pt as oth e rwis e provid e d in th e 
provi s o to Paragraph (f) of thi s Rul e . 

(0 A motor carrier permanently discontinuing the use of 
a vehicle, for which a cab card has boon prepared, shall 
nullify' th e cab card at th e tim e of s uch discontinuanc e : 
Provid e d, how e v e r, that if s uch di s continuanc e r e sults from 
destruction, loss or transfer of ov . 'nership of a vehicle owned 
by such carrier, or results from destruction or loss of a 
v e hicl e op e rat e d by such carri e r und e r a leas e of 30 cons e c 
utiv e days or more and s uch carri e r provid e s a n e wly 
acquired vehicle in substitution thereof within 30 days of the 
date of such discontinuance, each idontifioation stamp and 
numb e r plac e d on th e cab card pr e par e d for such disoontin 
u e d v e hicl e , if such card is still in th e poss es sion of th e 
carrier, may bo transferred to the substitute vehicle by 
complianc e with following procedure: 

(44 Each — motor carri e r — shall — d«4y — compl e t e — and 

e x e cut e th e form of c e rtificat e print e d on th e front 
of a new cab card, so a s to identify' itaolf and the 
s ub s titute vehicle and shall enter the appropriate 
e xpiration dat e in th e spac e provided below such 
c e rtifioate; 

(3^ Each motor carrier shall indicate the dato it 

terminated use of the di s continued vehicle by 
e nt e ring sam e in th e spac e provided for an e arly 
e xpiration dat e which app e ars b e low th e c e rtificat e 
of the cab card prepared for s uch vehicle; 

(5) Each motor carrier shall affix the cab card pre 

pared for th e substitut e v e hicl e to th e front of th e 
cab card prepared for th e discontinu e d v e hicl e , by 
permanently attaching the upper loft hand oomcra 
of both cards and. thereupon, each identification 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1167 



APPROVED RULES 



stamp or number appearing on the back of the 
oard prepared for the diooontinued v e hicl e shall b e 
doomed to apply to the operation of th e subotitut e 
vohiclo. 
(g) If a cab card is loot. dcBtroycd, mutilated, or becomes 
illegibl e , a n e w oab card may be prepared and n e w id e ntifi 
cation stamp ioouod therefore upon application by th e motor 
carrier and upon payment of the same foe proscribed for the 
original isouanco thoroof. 

(a) TTie RS-3 Registration Receipt shall not be issued 
until a motor carrier is in full compliance with all the 
provisions of Rules .0510 through .0517 of this Section. 

(b) Prior to operating a vehicle within the borders of 
North Carolina, the motor carrier shall place a copy of the 
RS-3 registration receipt in each vehicle for which fees have 
been paid. 

(c) A copy of the RS-3 registration receipt, upon request, 
shall be presented by the driver to any authorized agent or 
representative of the North Carolina Division of Motor 
Vehicles. 

(d) The original RS-3 registration receipt shall be 
retained by the motor carrier at its principal place of 
business for a period of three years. The motor carrier 
shall replace all expired copies of the RS-3 registration 
receipt with updated receipts each year. 

History Note: Filed as a Temporary Rule Ejf. February 

11, 1986 for a Period of 120 Days to Expire on June 11 , 

1986; 

Authority G.S. 20-378: 

Ejf. April 1, 1986; 

Amended Ejf. January 1, 1994; 

Transferred and Recodified from 19A NCAC 03D .0816 Ejf. 

January 3, 1996; 

Amended Eff. April 30. 1997 . 

.0515 DESIGNATION OF PROCESS AGENT 

No motor carrier shall engage in interstate commerce 
within the borders of the State of North Carolina unless and 
until there shall have been filed with and accepted by the 
Division a currently effective designation of a local agent 
for service of process. Each carrier shall file such designa- 
tion by showing the name and address of such agent on the 
uniform application for registration of interstate operating 
authority as set forth in Form A available from the Motor 
Carrier Regulatory Unit or by furnishing the Division with 
a true copy of the designation of such agent filed with the 
Interstate Commorco Commission. U.S. DOT. 

When a motor carrier is registering to operate under the 
Single State Registration Program a designation of process 
agent rBOC-3) shall be submitted with the initial application. 
Designation of process agent shall be filed in the registration 
state for each state of travel. 

History Note: Filed as a Temporary Rule Eff. February 
11 , 1986 for a Period of 120 Days to Expire on June 11, 
1986; 



Authority G.S. 20-378; 

Eff. April 1, 1986; 

Amended Eff. January 1, 1994; November 1, 1991; 

Transferred and Recodified from 19A NCAC 03D .0817 Eff. 

January 3, 1996; 

Amended Eff. April 30. 1997 . 

.0518 REGISTRATION: EXEMPT INTERSTATE 
MOTOR CARRIERS: DEFINmONS 

The following letters and words, when used in Rul e .0 8 21 
through Rul e .0 8 27, Rules .0519 through .0525 of this 
Section, shall have the following meanings, unless otherwise 
clearly apparent from the context: 

(1) The words "driveaway operation" shall mean an 
operation in which any vehicle or vehicles, oper- 
ated singly or in lawful combinations, new or 
used, not owned by the transporting motor car- 
rier, constitute the commodity being transported; 

(2) The letters "ICC" "U.S. DOT" shall mean the 
Interstate Commerce Commission; United States 
Department of Transportation; 

(3) The word "law" shall include constitutional and 
statutory provisions and rules adopted by the 
North Carolina Division of Motor Vehicles; 

(4) The words "motor carrier" shall mean a motor 
carrier of passengers or property for compensa- 
tion engaged in interstate or foreign commerce 
when its operation is exempt from economic 
regulation by the Interstate Commorco Comm s- 
siea U.S. DOT under the Interstate Commerce 
Act, as amended; 

(5) The letters "NARUC" shall mean the National 
Association of Regulatory Utility Commissioners; 

(6) The words "State Commission", "Commission", 
or "Division" shall mean the North Carolina 
Division of Motor Vehicles; 

(7) The word "vehicle" shall mean a self-propelled or 
motor driven vehicle operated by a motor carrier; 
and 

(8) The words "within the borders" shall mean such 
operations deemed to include interstate or foreign 
ofjerations to, from, within or traversing the state. 

History Note: Filed as a Temporary Rule Eff. February 

11 , 1986 for a Period of 120 Days to Expire on June 11, 

1986; 

Authority G.S. 20-378; 

Eff. April 1, 1986; 

Amended Eff. January 1 , 1994; 

Transferred and Recodified from 19A NCAC 03D .0820 Eff. 

January 3, 1996; 

Amended Eff. April 30. 1997. 

.0522 EVIDENCE OF LIABILFTY SECURITY 

(a) All interstate exempt motor carriers shall keep in 
force at all times public liability and property damage 
insurance in amounts not less than the minimum limits 



1168 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



APPROVED RULES 



prescribed by the United States Department of Transporta- 
tion. Tranoportntion or tho Intorotat e Comm e ro e Commia 
sion. Tho policy shall havo attach e d thoroto an ondoroement 
Form F (Uniform Motor Carrier Bodily Injury and Property 
Damage Liability In3urancc Endorsement) and as ovidonoo 
of ouch inourancQ. th e r e There shall be filed with the 
Division a Form E (Uniform Motor Carrier Bodily Injury 
and Property Damage Liability Certificate of Insurance). 

(b) Notice of cancellation of insurance shall be given to 
the Division by the insurer by filing Form K (Uniform 
Notice of Cancellation of Motor Carrier Insurance Policies). 

(c) Such motor carriers who elect to post bond in lieu of 
insurance ffwst shall do so by filing Form G (Uniform 
Motor Carrier Bodily Injury and Property Damage Liability 
Surety Bond). Notice of cancellation of surety bond shall be 
given to the Division by filing Form L (Uniform Notice of 
Cancellation of Motor Carrier Surety Bond). 

(d) No such policy or bond shall be acceptable unless 
issued by an admitted company or a surplus lines company 
as permitted in G.S. 58-16-1 and 58-21-20. Provided, if the 
motor carrier is not registered in this state and the insurance 
company or surety company is a non-admitted company, the 
company shall execute a power of attorney authorizing the 
commissioner to accept service on its behalf of notice or 
process in any action upon the policy or bond arising out of 
an accident involving the motor carrier in this state. 
Further, the company mu s t shall be qualified in the state 
where the motor carrier is registered. 

History Note: Filed as a Temporary Rule Eff. February 

11 , 1986 for a Period of 120 Days to Expire on June 11, 

1986; 

Authority G.S. 20-378; 

Eff. April 1, 1986; 

Amended Eff. January 1 , 1994; November 1 , 1991; 

Transferred and Recodified from 19A NCAC 03D .0824 Eff. 

January 3, 1996; 

Amended Eff. AprU 30. 1997 . 

CHAPTER 6 - DEPUTY SECRETARY - TRANSIT, 
RAIL, AND AVIATION 

SUBCHAPTER 6B - PUBLIC TRANSPORTATION 
ANT) RAIL PROGRAM 

SECTION 0400 - RAIL INDUSTRIAL ACCESS 
PROGRAM 

.0412 PROCUREMENTS 

All procurements shall be handled as follows: 
( 1 ) FVocurements shall be conducted through formal , 

competitive bidding; 
£2} Prior to advertising for bids, the Grantee shall 
submit the request for bids to the Department for 
review and approval in accordance with Federal 
Transportation Authority policies which are found 
in 49 CFR, Subtitle A. Part 18.36, Procurement, 



£3] 
(4) 

(5} 



which is hereby incorporated by reference includ- 
ing all subsequent amendments and editions and is 
available at no cost from the Rail Division, N.C. 
DOT, PO Box 25201, Raleigh. NC 27611, tele- 
phone 919-733-4713; 

The Grantee shall solicit bids from at least three 
firms; 

The Grantee shall submit to the Department a 
certified tabulation of the bids received and a 
recommendation for bid award; 
The Department shall review and approve the bid 
award in accordance with G.S. 143-129 prior to 
the execution of a contract between the Grantee 
and the selected bidder. The Grantee shall submit 
the following information when requesting bid 
approval: 
(al Bid list; 

Copy of proposed contract; 

Certified tabulation of bids results; 






(61 



Copy of signed bid submitted by the rec- 
ommended bidder; and 
After the Department approves a contract award, 
in accordance with G.S. 143-219, the Grantee 
shall submit a copy of the executed contract to the 
Department. 



History Note: Authority G.S. 136-44.36; 143-129; 143B- 
350(f) and (g); 
Eff. April 30, 1997 . 

TITLE 21 - OCCUPATIONAL LICENSING BOARDS 

CHAPTER 69 - BOARD FOR LICENSING OF SOIL 
SCIENTISTS 

SECTION .0200 - LICENSING OF SOIL 
SCIENTISTS 

.0201 APPLICATION PROCEDURE 

(a) All applicants for licensing shall furnish the follow- 
ing: 

A legible official copy of their college tran- 
scripl(s), and verification of graduation sent 
directly from the institution to the Board; 
A record of experience in the practice of soil 
science including any of the applicant's written 
reports, maps, published articles or other materi- 
als the Board determines are appropriate to docu- 
ment the applicant's experience as a soil scientist; 
Four references as defined in G.S. 89F-10(a)(l); 
Signed copy of Code of Professional Conduct; 
A notarized copy of a completed application form; 
and 

The application fee as prescribed in Rule .0104 of 
this Chapter. 

(b) Applicants for licensing under comity shall submit an 
application form along with the prescribed fee. The Board 



m 



m 



01 

(4} 
(5) 

(6) 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1169 



APPROVED RULES 



may require the submittal of additional information if 
necessary to determine if the applicant meets the require- 
ments of G.S. 89F. 

(c) Applicants for reinstatement of an expired license 
shall submit a reinstatement application and the prescribed 
fee. 

(d) Applicants for reinstatement of a revoked or sus- 
pended license shall submit such information as necessary to 
determine their eligibility for reinstatement, and shall submit 
the prescribed fee. 

(e) Applicants who do not meet the minimum qualifica- 
tion for education as defined in G.S. 89F-10 but haye a 
specific record of 15 years or more experience in the 
practice of soil science of a grade and character that 
indicates to the Board that the applicant js competent to 
practice soil science shall be admitted to the written exami- 
nation. The applicant shall show evidence of the practicing 
experience. Upon passing such examination, the applicant 
shall be granted a license to practice soil science in this 
State, provided other requirements of G.S. 89F and the 
rules in this Chapter are met. 

History Note: Authority G.S. 89F-5; 89F-9; 89F-10; 89F- 

12; 

Temporary Adoption Eff. May 15, 1996; 

Eff. April 1. 1997. 

SECTION .0300 - CONTINUING PROFESSIONAL 
COMPETENCY 



considering the response from the soil scientist, the Board 
may send additional letters of inquiry to the soil scientist 
and other persons involved. 

(b) Findings of the Board. Upon consideration of 
responses to inquiries, the Board shall determine what action 
shall be taken: 

(1) if the Board determines that no disciplinary action 
is necessary, all parties previously contacted shall 
be so informed; 

(2) if the Board determines that the infraction is 
deemed minor, then the licensee may be offered 
a "letter of warning". This "letter of warning" 
shall note the licensee's acceptance of such action 
by the Board and shall specify the Board's cause 
for concern. Other persons previously contacted 
shall be informed that the Board has acted upon 
the matter; 

(3) if the Board determines that a formal hearing 
should be held, G.S. 150B is applicable; 

(4) if the Board determines that another person 
involved is licensed by the State, relevant infor- 
mation shall be sent by letter to the respective 
professional board. 

History Note: Authority G.S. 89F-5; 89F-18; 89F-20; 

89F-22; 

Temporary Adoption Eff. May 15, 1996; 

Eff. April 1. 1997. 



.0306 RECORDKEEPING 

(a) Each licensee shall maintain records to be used to 
support credits claimed. Records required include: 

(1) a Jog showing the type of activity claimed, spon- 
soring organization, location, duration, instruc- 
tor's or speaker's name, and PDH credits earned; 

(2) attendance verification records [n the form of 
completion certificates, or other documents sup- 
porting evidence of attendance. 

(b) TTiese records shall be maintained for a period of 
three years and copies may be requested by the Board for 
audit verification purposes. 

History Note: Authority G.S. 89F-5; 
Temporary Adoption Eff. May 15, 1996; 
Eff. April 1. 1997. 

SECTION .0500 - DISCIPLINARY ACTION 
AND PROCEDURE 

.0501 IMPROPER PRACTICE BY LICENSEE 

(a) EhJty of the Board. When the Board becomes aware 
of a complaint, it shall send a "letter of inquiry" to the soil 
scientist involved and to the complainant. The soil scientist 
shall reply to this and an^ other inquiry of the Board within 
30 calendar days. Failure to respond shall constitute 
violation of the rules in this Chapter. After receiving and 



1170 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



LIST OF RULES CODIFIED 



J. he List of Rules Codified is a listing of rules that were filed with OAH in the month indicated and have been 


entered into the Code. 




K.ey: 




Citation = Title 


, Chapter, Subchapter and Rule(s) 


AD 


= Adopt 


AM 


= Amend 


RP 


= Repeal 


With Chgs 


= Final text differs from proposed text 


Corr 


= Typographical errors or changes that requires no rulemaking 


Temp. 


= Rule was filed as a temporary rule 


Eff. Date 


= Date rule becomes effective 



NORTH CAROLINA ADMINISTRATIVE CODE 
SEPTEMBER 96 



TITLE 


DEPARTMENT 


10 


Human Resources 


11 


Insurance 


15A 


Environment, Health, 




and Natural Resources 


17 


Revenue 



TITLE DEPARTMENT 

21 Occupational Licensing Boards 

16 - Dental Examiners 

45 - Fee-Based Practicing Pastoral Counselors 
54 - Practicing Psychologist 

24 Independent Agencies 

1 - NC Housing Finance Agency 

25 Personnel 



RULE CITATION 


AD 


AM 


RP 


WITH 
CHGS 


CORR 


TEMP 


EFFECTIVE 
DATE 


10 NCAC 26H .0212 - .0213 




/ 








/ 


09/25/96 


.0602 




/ 








/ 


10/01/96 


11 NCAC 20 .0101 


/ 






/ 






10/01/96 


.0201 - .0205 


/ 






/ 






10/01/96 


.0301 - .0304 


/ 






/ 






10/01/96 


.0401 - .0411 


/ 






/ 






10/01/96 


.0501 - .0511 


/ 






/ 






10/01/96 


.0601 - .0602 


/ 






/ 






10/01/96 


15A NCAC 2B .0101 




/ 




/ 






10/01/96 


.0103 




/ 




/ 






10/01/96 


.0109 






/ 








10/01/96 


.0201 - .0202 




/ 




/ 






10/01/96 


.0231 


/ 






/ 






10/01/96 


2C .0211 




/ 




/ 






10/01/96 





11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1171 



LIST OF RULES CODIFIED 





RUUE CITATION 


AD 


A.M 


RP 


WTTH 
CHGS 


CORR 


TEMP 


EFFEC-ITVE 
DATE 


15A NCAC 2C .0213 - .0214 




/ 




/ 






10/01/96 


2H .0501 


/ 






/ 






10/01/96 


.0502 - .0504 




/ 




/ 






10/01/96 


.0506 


/ 






/ 






10/01/96 


.0507 




/ 




/ 






10/01/96 


3M .0204 




/ 








/ 


10/01/96 


.0504 




/ 








/ 


10/01/96 


7H .0106 




/ 




/ 






10/01/96 


17 NCAC IC .0504 




/ 










10/01/96 


21 NCAC 16H .0203 




/ 




/ 






10/01/96 


16T .0101 - .0102 


/ 






/ 






10/01/96 


16U .0101 - .0102 


/ 












10/01/96 


.0201 


/ 






/ 






10/01/96 


.0202 - .0203 


/ 












10/01/96 


.0204 


/ 






/ 






10/01/96 


45 .0801 


/ 






/ 






10/01/% 


54 .1901 


/ 






/ 






10/01/96 


24 NCAC IP .0101 - .0103 


/ 










/ 


10/01/96 


.0201 - .0203 


/ 










/ 


10/01/96 


25 NCAC ID .2501 




/ 








/ 


09/01/96 


.2503 - .2505 




/ 








/ 


09/01/96 


.2507 - .2509 




/ 








/ 


09/01/96 


.2511 




/ 








/ 


09/01/96 


.2513 - .2514 




/ 








/ 


09/01/96 


.2516 


/ 










/ 


09/01/96 



ii72 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



RULES REVIEW COMMISSION 



1 his Section contains the agenda for the next meeting of the Rules Review Commission on Thursday. October 17. 1996. 
10:00 a.m. , at 1307 Glenwood Ave. , Assembly Room, Raleigh, NC. Anyone wishing to submit written comment on any 
rule before the Commission should submit those comments to the RRC staff, the agency, and the individual Commissioners 
by Monday, October 14, 1996. at 5:00 p. m. Specific instructions and addres.^es may be obtained from the Rules Review 
Commission at 919-733-2721. Anyone wishing to address the Commission should notify the RRC staff and the agency at 
least 24 hours prior to the meeting. 



RULES REVIEW COMMISSION MEMBERS 



Appointed by Senate 

Vemice B. Howard 

Teresa L. Smallwood 

Charles H. Henry 

Philip O. Redwine - Vice Chairman 



Appointed by House 

Bill Graham 
Paul Powell 
Anita White 



RULES REVIEW COMMISSION MEETING DATES 



October 17, 1996 
November 21, 1996 



December 19, 1996 



MEETING DATE: OCTOBER 17, 1996 



LOG OF FILINGS 
RULES SUBMITTED: AUGUST 20, 1996 THROUGH SEPTEMBER 20, 1996 



AGENCY/DIVISION RULE NAME 


RULE 




ACTION 


DHR/DIVISION OF FACILITY SERVICES 








Name and Address 


10 NCAC 3R 


.0109 


Repeal 


Definitions 


10 NCAC 3R 


.0110 


Amend 


Location of Agency 


10 NCAC 3R 


.0111 


Adopt 


Health Maintenance 


10 NCAC 3R 


.0213 


Amend 


Replacement Equipment 


10 NCAC 3R 


.0214 


Amend 


Psychiatric Bed Converstion 


10 NCAC 3R 


.0215 


Adopt 


Letter of Intent 


10 NCAC 3R 


.0303 


Amend 


Determination of Review 


10 NCAC 3R 


.0304 


Amend 


Filing Applications 


10 NCAC 3R 


.0305 


Amend 


Withdrawal of Certificate 


10 NCAC 3R 


.0317 


Amend 


Assessment of Civil Penalty 


10 NCAC 3R 


.0904 


Adopt 


State Medical Facilities 


10 NCAC 3R 


.1003 


Repeal 


Definitions 


10 NCAC 3R 


.1113 


Repeal 


Capacity in the Facility 


10 NCAC 3R 


.1115 


Repeal 


Scope of Services 


10 NCAC 3R 


.1116 


Repeal 


Projected Utilization 


10 NCAC 3R 


.1117 


Repeal 


Projected Patient Origin 


10 NCAC 3R 


.1118 


Repeal 


Site: Building 


10 NCAC 3R 


.1119 


Repeal 


Staffing 


10 NCAC 3R 


.1120 


Repeal 


Accessibility of Services 


10 NCAC 3R 


.1124 


Repeal 


Information Required 


10 NCAC 3R 


.1125 


Adopt 


Required Performance 


10 NCAC 3R 


.1126 


Adopt 


Required Staffing 


10 NCAC 3R 


.1127 


Adopt 


Information Required 


10 NCAC 3R 


.1214 


Amend 


Required Support 


10 NCAC 3R 


.1216 


Amend 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1173 



RULES REVIEW COMMISSION 



Accessibility 


10 NCAC 3R 


.1218 


Repeal 


Data Reporting 


10 NCAC 3R 


.1219 


Repeal 


Definitions 


10 NCAC 3R 


.1302 


Repeal 


Capacity in the Facility 


10 NCAC 3R 


.1304 


Repeal 


Scope of Sen'ices Offered 


10 NCAC 3R 


.1305 


Repeal 


Projected Utilization 


10 NCAC 3R 


.1306 


Repeal 


Projected Patient Origin 


10 NCAC 3R 


.1307 


Repeal 


Site and Equipment 


10 NCAC 3R 


.1308 


Repeal 


Staffing 


10 NCAC 3R 


.1309 


Repeal 


Definitions 


10 NCAC 3R 


.1413 


Amend 


Information Required 


10 NCAC 3R 


.1414 


Amend 


Data Reporting 


10 NCAC 3R 


.1418 


Repeal 


Accessibility 


10 NCAC 3R 


.1419 


Repeal 


Definitions 


10 NCAC 3R 


.1613 


Amend 


Information Required 


10 NCAC 3R 


.1614 


Amend 


Required Performance 


10 NCAC 3R 


.1615 


Amend 


Data Reporting 


10 NCAC 3R 


.1618 


Repeal 


Accessibility 


10 NCAC 3R 


.1619 


Repeal 


Definitions 


10 NCAC 3R 


.1713 


Amend 


Information Required 


10 NCAC 3R 


.1714 


Amend 


Data Reporting 


10 NCAC 3R 


.1719 


Repeal 


Accessibility 


10 NCAC 3R 


.1720 


Repeal 


Definitions 


10 NCAC 3R 


.1912 


Amend 


Information Required 


10 NCAC 3R 


.1913 


Amend 


Required Performance 


10 NCAC 3R 


.1914 


Amend 


Required Staffing 


10 NCAC 3R 


.1916 


Amend 


Accessibility 


10 NCAC 3R 


.1917 


Repeal 


Data Reporting 


10 NCAC 3R 


.1918 


Repeal 


Accessibility to Services 


10 NCAC 3R 


.2117 


Repeal 


Data Reporting 


10 NCAC 3R 


.2120 


Repeal 


Data Reporting 


10 NCAC 3R 


.2319 


Repeal 


Accessibility 


10 NCAC 3R 


.2320 


Repeal 


Definitions 


10 NCAC 3R 


.2402 


Amend 


Capacity in the Facility 


10 NCAC 3R 


.2404 


Repeal 


Scope of Services 


10 NCAC 3R 


.2405 


Repeal 


Project Utilization 


10 NCAC 3R 


.2406 


Repeal 


Projected Resident Origin 


10 NCAC 3R 


.2407 


Repeal 


Site: Building 


10 NCAC 3R 


.2408 


Repeal 


Staffing 


10 NCAC 3R 


.2409 


Repeal 


Information Required 


10 NCAC 3R 


.2410 


Adopt 


Performance Standards 


10 NCAC 3R 


.2411 


Adopt 


Staff 


10 NCAC 3R 


.2412 


Adopt 


Definitions 


10 NCAC 3R 


.2502 


Amend 


Capacity in the Facility 


10 NCAC 3R 


.2503 


Repeal 


Capacity in the Service Area 


10 NCAC 3R 


.2504 


Repeal 


Scope of Ser\'ices 


10 NCAC 3R 


.2505 


Repeal 


Staffing 


10 NCAC 3R 


.2506 


Repeal 


Accessibility 


10 NCAC 3R 


.2507 


Repeal 


Capital 


10 NCAC 3R 


.2508 


Repeal 


Quality- of Ser\'ices 


10 NCAC 3R 


.2509 


Repeal 


Qualit\' of Sep.'ices 


10 NCAC 3R 


.2510 


Adopt 


Performance Standards 


10 NCAC 3R 


.2511 


Adopt 


Staffing 


10 NCAC 3R 


.2512 


Adopt 


Capacity in the Facility 


10 NCAC 3R 


.2603 


Repeal 


Scope of Services 


10 NCAC 3R 


.2605 


Repeal 


Accessibility 


10 NCAC 3R 


.2607 


Repeal 


Relationship 


10 NCAC 3R 


.2608 


Repeal 



1174 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



RULES REVIEW COMMISSION 



Capital 

Quality of Services 

Information Required 

Performance Standards 

Accessibility 

Data Reporting 

Information Required 

Projected Utilization 

Projected Patient Origin 

Site: Building 

Required Staffing 

Accessibility 

Relationship 

Performance Standards 

Certificate of Need 

Multi-County Groupings 

Certificate of Need 

Facility and Service Need 

Dialysis Station 

Reallocations 

Policies 

Information Required 

Accessibility 

Data Reporting 

Required Support 

Data Reporting 

Accessibility 

Data Reporting 

Definitions 

Data Reporting 

Accessibility 

Information Required 

Need for Services 

Data Reporting 

Accessibility 

Accessibility 

Data Reporting 

Data Reporting 

Accessibility 

Data Reporting 

Accessibility 

Definitions 

Information Required 

Need for Facility 

Data Reporting 

Accessibility 

Performance Standards 

Information Required 

Required Support 

Additional Requirements 

Additional Requirements 

Additional Requirements 

Additional Requirements 

Additional Requirements 

Need for Services 

Data Reporting 

Accessibility 



10 NCAC 3R 


.2609 


Repeal 


10 NCAC 3R 


.2610 


Repeal 


10 NCAC 3R 


.2612 


Adopt 


10 NCAC 3R 


.2613 


Adopt 


10 NCAC 3R 


.2718 


Repeal 


10 NCAC 3R 


.2719 


Repeal 


10 NCAC 3R 


.2802 


Amend 


10 NCAC 3R 


.2803 


Repeal 


10 NCAC 3R 


.2804 


Repeal 


10 NCAC 3R 


.2805 


Repeal 


10 NCAC 3R 


.2806 


Amend 


10 NCAC 3R 


.2807 


Repeal 


10 NCAC 3R 


.2809 


Repeal 


10 NCAC 3R 


.2810 


Adopt 


10 NCAC 3R 


.3001 


Amend 


10 NCAC 3R 


.3010 


Amend 


10 NCAC 3R 


.3020 


Amend 


10 NCAC 3R 


.3030 


Amend 


10 NCAC 3R 


.3032 


Amend 


10 NCAC 3R 


.3040 


Amend 


10 NCAC 3R 


.3050 


Amend 


10 NCAC 3R 


.3103 


Amend 


10 NCAC 3R 


.3107 


Repeal 


10 NCAC 3R 


.3108 


Repeal 


10 NCAC 3R 


.3204 


Amend 


10 NCAC 3R 


.3206 


Repeal 


10 NCAC 3R 


.3207 


Repeal 


10 NCAC 3R 


.3306 


Repeal 


10 NCAC 3R 


.3401 


Amend 


10 NCAC 3R 


.3406 


Repeal 


10 NCAC 3R 


.3407 


Repeal 


10 NCAC 3R 


.3502 


Amend 


10 NCAC 3R 


.3503 


Repeal 


10 NCAC 3R 


.3506 


Repeal 


10 NCAC 3R 


.3507 


Repeal 


10 NCAC 3R 


.3606 


Repeal 


10 NCAC 3R 


.3607 


Repeal 


10 NCAC 3R 


.3706 


Repeal 


10 NCAC 3R 


.3707 


Repeal 


10 NCAC 3R 


.3806 


Repeal 


10 NCAC 3R 


.3807 


Repeal 


10 NCAC 3R 


.3902 


Amend 


10 NCAC 3R 


.3903 


Amend 


10 NCAC 3R 


.3904 


Repeal 


10 NCAC 3R 


.3907 


Repeal 


10 NCAC 3R 


.3908 


Repeal 


10 NCAC 3R 


.3909 


Adopt 


10 NCAC 3R 


.4002 


Amend 


10 NCAC 3R 


.4003 


Amend 


10 NCAC 3R 


.4004 


Amend 


10 NCAC 3R 


.4005 


Amend 


10 NCAC 3R 


.4006 


Amend 


10 NCAC 3R 


.4007 


Amend 


10 NCAC 3R 


.4008 


Repeal 


10 NCAC 3R 


.4010 


Repeal 


10 NCAC 3R 


.4011 


Repeal 


10 NCAC 3R 


.4012 


Amend 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1175 



RULES REVIEW COMMISSION 



Information Required 
Required Performance 
Required Support 
Required Staffing 
Data Reporting 
Accessibility 
Information Required 
Required Support 
Accessibility 
Data Reporting 

DHR/CHILD DAY CARE COMMISSION 

Definitions 

Preservice Requirements 
Preservice Requirements 
Application for Permits 
Criminal Record Check 
Criminal Record Check 
Criminal Record Check 



10 NCAC 3R 


.4102 


Amend 


10 NCAC 3R 


.4103 


Amend 


10 NCAC 3R 


.4104 


Amend 


10 NCAC 3R 


.4105 


Amend 


10 NCAC 3R 


.4106 


Repeal 


10 NCAC 3R 


.4107 


Repeal 


10 NCAC 3R 


.4202 


Amend 


10 NCAC 3R 


.4204 


Amend 


10 NCAC 3R 


.4206 


Repeal 


10 NCAC 3R 


.4207 


Repeal 


10 NCAC 3U 


.0102 


Amend 


10 NCAC 3U 


.0704 


Amend 


10 NCAC 3U 


.0710 


Amend 


10 NCAC 3U 


.2701 


Adopt 


10 NCAC 3U 


.2702 


Adopt 


10 NCAC 3U 


.2703 


Adopt 


10 NCAC 3U 


.2704 


Adopt 



DHR/SOCIAL SERVICES COMMISSION 

Preplacement Assessment 



10 NCAC 4IP .0008 



Amend 



DEHNR/ENVIRONMENTAL MANAGEMENT COMMISSION 

Activities Exempted 



15A NCAC 2Q .0102 



Amend 



DEHNRAVILDLIFE RESOURCES COMMISSION 








Wildlife Taken 


15A NCAC 


lOB .0106 


Amend 


Possession of Certain Species 


15A NCAC 


lOB .0123 


Amend 


Local Water Safety 


15A NCAC 


lOF .0307 


Amend 


Qualifications 


15A NCAC 


lOG .0102 


Repeal 


Change of Ownership 


15A NCAC 


lOG .0103 


Repeal 


Qualifications of Agents 


15A NCAC 


lOG .0202 


Repeal 


Change of Ownership 


15A NCAC 


lOG .0203 


Repeal 


Authority of Boat Registration 


15A NCAC 


lOG .0206 


Repeal 


Qualifications of Agents 


15A NCAC 


lOG .0302 


Repeal 


Change of Ownership 


15A NCAC 


lOG .0303 


Repeal 


Purpose 


15A NCAC 


lOG .0401 


Adopt 


Appointment 


15A NCAC 


lOG .0402 


Adopt 


Wildlife Service Agent 


15A NCAC 


lOG .0403 


Adopt 


Customer Support System 


15A NCAC 


lOG .0404 


Adopt 


Protection of Endangered Species 


15A NCAC 


101 .0002 


Amend 



DEHNR/COMMISSION FOR HEALTH SERVICES 

Definitions 



15A NCAC 18A .2601 



Amend 



NC LICENSING BOARD FOR CENTRAL CONTRACTORS 

Eligibility 
Renewal of License 

OFnCE OF ADMINISTRATIVE HEARINGS 

Order Designating Complex 

Factors to be Considered 

Venue 

Expedited Hearing 

Rules and Procedures 



21 NCAC 12 .0204 


Amend 


21 NCAC 12 .0503 


Amend 


26 NCAC 3 .0301 


Adopt 


26 NCAC 3 .0302 


Adopt 


26 NCAC 3 .0303 


Adopt 


26 NCAC 3 .0304 


Adopt 


26 NCAC 3 .0305 


Adopt 



1176 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



RULES REVIEW COMMISSION 



RULES REVIEW OBJECTIONS 

BOARD OF DENTAL EXAMINERS 

21 NCAC 16H .0104 - Approved Education and Training Programs 

21 NCAC 16H .0202 - Specific Permitted Functions of Dental Assistant I 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 



RRC Objection 
RRC Objection 



09/19/96 
09/19/96 



Environmental Management 

ISA NCAC 2B .0101 - General Procedures RRC Objection 07/18/96 

No Response from Agency Obj. Cont'd 08/15/96 

Agency Responded Obj. Cont'd 09/19/96 

Rule Returned to Agency Obj. Cont'd 09/19/96 
Agency Filed Rule for Codification Over RRC Objection Eff. 10/01/96 

15A NCAC 2B .0103 - Analytical Procedures RRC Objection 07/18/96 

No Response from Agency Obj. Cont'd 08/15/96 

Agency Revised Rule Obj. Cont'd 09/19/96 

Rule Returned to Agency Obj. Cont'd 09/19/96 
Agency FUed Rule for Codification Over RRC Objection Eff 10/01/96 

15A NCAC 2B .0109 - Waters Affected by Dredge and Fill Activities RRC Objection 07/18/96 

No Response from Agency Obj. Cont'd 08/15/96 

Obj. Removed 09/19/96 

15 A NCAC 2B .0201 - Antidegradation Policy RRC Objection 07/18/96 

No Response from Agency Obj. Cont'd 08/15/96 

Agency Responded Obj. Cont'd 09/19/96 

Rule Returned to Agency Obj. Cont'd 09/19/96 
Agency Filed Rule for Codification Over RRC Objection Eff. 10/01/96 

15A NCAC 2B .0202 - Definitions RRC Objection 07/18/96 

No Response from Agency Obj. Cont 'd 08/15/96 

Agency Revised Rule Obj. Cont'd 09/19/96 

Rule Returned to Agency Obj. Cont'd 09/19/96 
Agency Filed Rule for Codification Over RRC Objection Eff 10/01/96 

15A NCAC 2B .0231 - Wetland Standards (Rule .0231 was Noticed as Rule .0220) RRC Objection 07/18/96 

No Response from Agency Obj. Cont 'd 08/15/96 

Agency Responded Obj. Cont'd 09/19/96 

Rule Returned to Agency Obj. Cont'd 09/19/96 
Agency Filed Rule for Codification Over RRC Objection Eff. 10/01/96 

15A NCAC 2C .0211 - Permits RRC Objection 08/15/96 

Agency Revised Rule Obj. Removed 09/19/96 

15A NCAC 2C .0213 - Additional Criteria and Standards Applicable to Class 5 Wells RRC Objection 08/15/96 

Agency Revised Rule Obj. Removed 09/19/96 

15A NCAC 2C .0214 - Abandonment and Change-of-Status of Wells RRC Objection 08/15/96 

Agency Revised Rule Obj. Removed 09/19/96 

15A NCAC 2D .0501 - Compliance with Emission Control Standards RRC Objection 06/20/96 

Agency Revised Rule Obj. Removed 06/20/96 

15A NCAC 2D .0608 - Program Schedule RRC Objection 06/20/96 

Agency Revised Rule Obj. Removed 06/20/96 

15A NCAC 2D .0901 - Definitions RRC Objection 06/20/96 

Agency Revised Rule Obj. Removed 06/20/96 

15 A NCAC 2D .0926 - Bulk Gasoline Plants RRC Objection 06/20/96 

Agency Revised Rule Obj. Removed 06/20/96 

15A NCAC 2D .0934 - Coating of Miscellaneous Metal Parts and Products RRC Objection 06/20/96 

Agency Revised Rule Obj. Removed 06/20/96 

15A NCAC 2D .1109 - Case-by-Case Maximum Achiex'able Control Technology RRC Objection 06/20/96 

Agency Revi.sed Rule Obj. Removed 06/20/96 

15 A NCAC 2H .0501 - Purpose RRC Objection 07/18/96 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1177 



RULES REVIEW COMMISSION 



No Response from Agency 

Agency Responded 

Rule Returned to Agency 

Agency Filed Rule for Codification Over RRC Objection 
15A NCAC 2H .0502 - Application 

No Response from Agency 

Agency Responded 

Rule Returned to Agency 

Agency Filed Rule for Codification Over RRC Objection 
15A NCAC 2H .0503 - Public Notice 

No Response from Agency 

Agency Responded 

Rule Returned to Agency 

Agency Filed Rule for Codification Over RRC Objection 
15A NCAC 2H .0504 - Hearing 

No Response from Agency 

Agency Responded 

Rule Returned to Agency 

Agency Filed Rule for Codification Over RRC Objection 
15A NCAC 2H .0506 - Criteria for Review of Applications 

No Response from Agency 

Agency Revised Rule 

Rule Returned to Agency 

Agency Filed Rule for Codification Over RRC Objection 
15A NCAC 2H .0507 - Issuance of Certification 

No Response from Agency 

Agency Responded 

Rule Returned to Agency 

Agency Filed Rule for Codification Over RRC Objection 



Obj. Cont'd 
Obj. Contd 
Obj. Cont'd 

RRC Objection 
Obj. Cont'd 
Obj. Cont'd 
Obj. Cont'd 

RRC Objection 
Obj. Cont'd 
Obj. Cont'd 
Obj. Cont'd 

RRC Objection 
Obj. Cont'd 
Obj. Cont'd 
Obj. Cont'd 

RRC Objection 
Obj. Cont'd 
Obj. Cont'd 
Obj. Cont'd 

RRC Objection 
Obj. Cont'd 
Obj. Cont'd 
Obj. Cont'd 



Eff 



Eff 



Eff 



Eff 



Eff 



Eff 



08/15/96 

09/19196 
09/19/96 
10/01/96 
07/18/96 
08/15/96 
09/19/96 
09/19/96 
10/01/96 
07/18/96 
08/15/96 
09/19/96 
09/19/96 
10/01/96 
07/18/96 
08/15/96 
09/19/96 
09/19/96 
10/01/96 
07/18/96 
08/15/96 
09/19/96 
09/19/96 
10/01/96 
07/18/96 
08/15/96 
09/19/96 
09/19/96 
10/01/96 



Commission for Health Services 

15A NCAC 13C .0302 - General Provisions RRC Objeaion 09/19/96 

15A NCAC 13C .0304 - Minimum Qualifications for Registered Env. Consultants RRC Objection 09/19/96 

15A NCAC 13C .0306 - Technical Standards for Registered Environmental Consultants RRC Objection 09/19/96 

15A NCAC 18A .3106 - Abatement RRC Objection 07/18/96 

Agency Re\'ised Rule Obj. Removed 08/15/96 



Wildlife Resources Commission 

15A NCAC lOF .0104 - Certificate of Number 
Agency RevL'^ed Rule 

15A NCAC lOF .0105 - Numbering Pattern 
Agency Re\'ised Rule 

15A NCAC lOF .0342 - Catawba County- 
Rule Withdrawn by Agency 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



07/18/96 
08/15/96 
07/18/96 
08/15/96 

07/18/96 



HUMAN RESOURCES 



Social Services Commission 

10 NCAC 41F .0707 - Criminal Histories 
No Response from Agency- 
Agency Re\-ised Rule 

10 NCAC 41 F .0813 - Criminal History- Checks 
No Response from Agency- 
Agency- Revised Rule 

10 NCAC 41 F .0814 - Training Requirements 
No Response from Agency- 
Agency Re\-ised Rule 



RRC Objection 
Obj. Cont'd 
Obj. Removed 
RRC Objection 
Obj. Cont'd 
Obj. Removed 
RRC Objection 
Obj. Cont'd 
Obj. Removed 



07/18/96 
08/15/96 
09/19/96 
07/18/96 
08/15/96 
09/19/96 
07/18/96 
08/15/96 
09/19/96 



II 78 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



RULES REVIEW COMMISSION 



INSURANCE 

11 NCAC 20 .0101 - Definitions 

Agency Revised Rule 
11 NCAC 20 .0402 - Organization Structure 

Agency Revised Rule 
11 NCAC 20 .0404 - Application 

Agency Revised Rule 
11 NCAC 20 .0406 - Provider Files 

Agency Revised Rule 
11 NCAC 20 .0501 - Program 

Agency Revised Rule 
11 NCAC 20 .0502 - Structure 

Agency Rex'ised Rule 
11 NCAC 20 .0505 - Quality of Care Complaints 

Agency Revised Rule 
11 NCAC 20 .0701 - Accessibility of Providers 

Agency Withdrew Rule 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Cont'd 



08/15/96 
09/19/96 
08/15/96 
09/19/96 
08/15/96 
09/19/96 
08/15/96 
09/19/96 
08/15/96 
09/19/96 
08/15/96 
09/19/96 
08/15/96 
09/19/96 
08/15/96 
09/19/96 



EXAMINERS FOR NURSING HOME ADMINISTRATORS 

21 NCAC 37H .0102 - Continuing Education Programs of Study 
Agency Revised Rule 



RRC Objeaion 
Obj. Removed 



07/18/96 
08/15/96 



PSYCHOLOGY BOARD 

21 NCAC 54 . 1901 - Types 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



08/15/96 
09/19/96 



REAL ESTATE COMMISSION 

21 NCAC 58A .0104 - Agency Agreements arui Disclosure 

Agency Revised Rule 
21 NCAC 58A .0113 - Reporting Criminal Convictions 

Agency Revised Rule 
21 NCAC 58A .0502 - Business Entities 

Agency Revised Rule 
21 NCAC 58A .0610 - Subpoenas 

Agency Revised Rule 
21 NCAC 58E .0302 - Elective Course Component 

Agency Responded 

Agency Revised Rule 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objeaion 
Obj. Cont'd 
Obj. Removed 



06/20/96 
07/18/96 
06/20/96 
07/18/96 
06/20/96 
06/20/96 
06/20/96 
07/18/96 
06/20/96 
07/18/96 
08/15/96 



REVENUE 

17 NCAC IC .0504 - EFT General Requirements 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



08/15/96 
09/19/96 



BOARD FOR LICENSING OF SOIL SCIENTISTS 

21 NCAC 69 .0102 - Duties of Officers 

Definitions 

Requirements 

Units 

Determination of Credit 
21 NCAC 69 .0307 - Exemptions 
21 NCAC 69 .0401 - Code of Professional Conduct 
21 NCAC 69 .0402 - Rules of Conduct of Advertising 



21 NCAC 69 .0302 
21 NCAC 69 .0303 
21 NCAC 69 .0304 
21 NCAC 69 .0305 



RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 
RRC Objection 



09/19/96 
09/19/96 
09/19/96 
09/19/96 
09/19/96 
09/19/96 
09/19/96 
09/19/96 



TRANSPORTATION 



Division of Highways 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1179 



RULES REVIEW COMMISSION 



19A NCAC 2D .1102- Definitions 

Agency Revised Rule 
19A NCAC 2D . 1108 - Goals 

Agency Revised Rule 
19A NCAC 2D .1111 - Performance Related Replacement of Eligible Firms 

Agency Revised Rule 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



08/15/96 
09/19/96 
08/15/96 
09/19/96 
08/15/96 
09/19/96 



Division of Motor Vehicles 

19A NCAC 3 E .0511 - Registration of Interstate Authority 



RRC Objection 



09/19/96 



Public Transportation and Rail Division 

19A NCAC 6B .0412 - Procurements 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



08/15/96 
09/19/96 



1180 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



CONTESTED CASE DECISIONS 



J. his Section contains the fiill text of some of the more significant Administrative Law Judge decisions along with an index 
to all recent contested cases decisions which are filed under North Carolina 's Administrative Procedure Act. Copies of 
the decisions listed in the index and not published are available upon request for a minimal charge by contacting the 
Office of Administrative Hearings, (919) 733-2698. 



OFFICE OF ADMINISTRATIVE HEARINGS 

Chief Administrative Law Judge 
JUUAN MANN, III 

Senior Administrative Law Judge 
FRED G. MORRISON JR. 

ADMINISTRA TIVE LA W JUDGES 



Brenda B. Becton 
Sammie Chess Jr. 
Beecher R. Gray 
Meg Scott Phipps 



Robert Roosevelt Reilly Jr. 
Dolores Nesnow Smith 
TTiomas R. West 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ADMINISTRATION 

Douglas J. Register v. Departmenl of Administration 
Purchase and Contract 

Budd Seed, Ine. v. Department of Administration 
ALCOHOLIC BEVERAGE CONTROL COMMISSION 



96DOA0172 Reilly 



96 DOA 0281 Chess 



08/16/96 



09/19/96 



Osama Arafat Sadar v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Commission v. James Eads Sprowles 
Cole Entertainment, Inc. v. Alcoholic Beverage Control Commission 
Fuad Saif Murshed v. Ale. Bev. Ctl. Comm. & Durham Mem. Bapt. Ch. 
Alcoholic Beverage Control Commission v. Tremik, Inc. 
Alcoholic Beverage Control Commission v. Maria Virginia Tramonlano 
Alcoholic Beverage Control Commission v. Huffman Oil Co., Inc. 
Pinakin P. Talate v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Commission v. Entrepreneur, Inc. 
Alcoholic Beverage Control Commission v. Zell, Inc. 
Alcoholic Beverage Control Commission v. Henry Franklin Gurganus 
Andrew Parker v. Alcoholic Beverage Control Commission 
Barraq Sabri Alquza v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Comm. v. Partnership T/A T & L Groceries 
Alcoholic Beverage Control Commission v. Cashion's Food Mart, Inc. 
Alcoholic Beverage Control Commission v. E.K.'s n. Inc. Carl E. Collins 
Bro Bee, Inc. v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Commission v. Donald Ray Doak 
Alcoholic Beverage Control Commission v. Janice Lorraine Jeter 
Alcoholic Beverage Control Commission v. Well Informed, Inc. 
Alcoholic Beverage Control Commission v. Kuhbard, Inc. 
Alcoholic Beverage Control Commission v. Stemmermans's, Inc. 
George Wright and Alice Ramsuer v. Alcoholic Beverage Control Comm. 
Alcoholic Beverage Control Commission v. Bayron Green 



95 ABC 0721 


Gray 


07/09/96 




95 ABC 0883*' 


Gray 


07/10/96 




95 ABC 0917 


West 


08/21/96 


11:12 NCR 1027 


95 ABC 0922 


Chess 


04/24/96 




95 ABC 0925 


Morrison 


03/25/96 




95 ABC 


1200 


West 


04/23/96 




95 ABC 


1251 


West 


04/03/96 


11:03 NCR 166 


95 ABC 


1329 


West 


04/10/96 




95 ABC 


1363 


Reilly 


05/02/96 




95 ABC 


1366 


West 


06/17/96 




95 ABC 


1389 


West 


04/01/96 




95 ABC 


1402 


Phipps 


03/27/96 




95 ABC 


1424 


Phipps 


04/03/96 




95 ABC 


1443 


West 


03/26/96 




95 ABC 


1444 


Gray 


03/13/96 




95 ABC 


1458 


Chess 


08/12/96 




95 ABC 


1480 


West 


04/15/96 




95 ABC 


1488 


West 


03/29/96 




96 ABC 0013 


Reilly 


04/26/96 




96 ABC 0016 


Chess 


05/28/96 




96 ABC 0017 


Reilly 


05/20/96 




96 ABC 0018 


Chess 


05/28/96 




96 ABC 0058 


Becton 


04/16/96 




96 ABC 0097 


Becton 


08/23/96 





11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1181 



CONTESTED CASE DECISIONS 



AGENCY 



Alcoholic Beverage Conlrol Commission v. Robert Montgomery McKn 
Gerald Audry Sellars v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Commission v. Jacqueline Robin Anthony 
Alcoholic Beverage Control Commission v. Factory Night Club, Inc. 
Alcoholic Beverage Control Commission v. C.N.H. Enterprises, Inc. 
Alcoholic Beverage Control Commission v. Millicent J. Green 
Ghassan Hasan Issa v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Commission v. Abdelhakeem Muraweh Sal 
Alcoholic Beverage Control Commission v. Triangle Drive-In 
Alcoholic Beverage Control Commission v. Beroth Oil Company 
Alcoholic Beverage Control Commission v. Beroth Oil Company 
Alcoholic Beverage Control Commission v. Beroth Oil Company 
Alcoholic Beverage Control Commission v. Beroth Oil Company 
Alcoholic Beverage Control Commission v. Giles Rozier 
Alcoholic Beverage Control Commission v. Clifton Franklin Smith 
Dilthra Smith Patton v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Commission v. James Eads Sprowles 
Alcoholic Beverage Control Commission v. Albert S. Carter 
Alcoholic Beverage Control Comm. v. Centergrove Entertainment Ent. 
Louis Corpening v. Alcoholic Beverage Control Commission 

COIVIMISSION FOR AUCTIONEERS 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


iight96 ABC 0135 


Phipps 


05/09/96 


96 ABC 0160 


Becton 


06/25/96 


96 ABC 0184 


Phipps 


05/09/96 


96 ABC 0226 


Phipps 


08/02/96 


96 ABC 0232 


Becton 


07/09/96 


96 ABC 0234 


Nesnow Smith 


06/13/96 


96 ABC 0256 


Morrison 


05/23/96 


leh 96 ABC 0381 


Chess 


08/27/96 


96 ABC 0443 


ReiUy 


06/11/96 


96 ABC 0447 


Morrison 


08/30/96 


96 ABC 0448 


Morrison 


08/30/96 


96 ABC 0449 


Morrison 


08/30/96 


96 ABC 0450 


Morrison 


08/30/96 


96 ABC 0473 


Morrison 


09/19/96 


96 ABC 0474 


Reilly 


08/12/96 


96 ABC 0505 


Morrison 


08/06/96 


96 ABC 0526*' 


Gray 


07/10/96 


96 ABC 0534 


Morrison 


08/05/96 


96 ABC 0583 


Reilly 


08/12/96 


96 ABC 0985 


Gray 


09/26/96 



PUBLISHED DECISION 
REGISTER CITATION 



11:08 NCR 564 



11:13 NCR 1085 



John W. Foster v. Auctioneer Licensing Board 
DEPARTMENT OF CORRECTION 



96 CFA 0201 Phipps 



05/06/96 



James J. L*:wis v. Department of Correction 
CRIME CONTROL AND PUBLIC SAFETY 



96 DOC 0772 



West 



09/05/96 



Roland Lee Kelly, Jr. v. United Family Services, Victim Assistance/Crime 95 

Victims Compensation Comm. 
Robert F. Bronsdon v. Crime Victims Compensation Commission 
Helen B. Hunler-Reid v. Crime Victims Compensation Commission 
Deborah C. Passarelli v. Crime Victims Compensation Commission 
Kenneth Saunders v. Victims Compensation Commission 
Franklin McCoy Jones v. Crime Victims Compensation Commission 
Ruhy H. Ford v. Crime Victims Compensation Commission 
Manuel Cervantes v. Victims Compensation Fund 
Sheila Carol Blake v. Victims Compensation Commission 
James T. Mungo v. Victims Compensation Commission 
Jerome Crutchfield v. CPS, Victims Compensation Commission 
William Theodore Frazier v. Crime Victims Compensation Commission 
Emma Coble v. Crime Victims Compensation Commission 
Donna Williams v. Crime Victims Compensation Commission 
Anthony P. Dawkins v. Crime Victims Compensation Commission 
Shirley M. King v. Crime Victims Compensation 

Mark Matthews for Child Victim v. Crime Victims Compensation Comm. 96 
Clara Durham v. Victims Compensation 



95 CPS 0568 


Morrison 


05/29/96 




95 CPS 1216 


Chess 


05/28/96 




95 CPS 1336 


Nesnow Smith 


03/29/96 


11:02 NCR 93 


95 CPS 1399 


Reilly 


07/18/96 


11:09 NCR 814 


95 CPS 1445 


Chess 


03/26/96 




96 CPS 0056 


Nesnow Smith 


07/03/96 




96 CPS 0110 


Reilly 


04/18/96 




96 CPS 0118 


Chess 


03/19/96 




96 CPS 0280 


West 


07/10/96 




96 CPS 0333 


Reilly 


07/09/96 




96 CPS 0340 


Phipps 


09/05/96 




96 CPS 0435 


Chess 


08/22/96 




96 CPS 0468 


Chess 


09/25/96 




96 CPS 0493 


Morrison 


06/13/96 




96 CPS 0716 


Reilly 


08/16/96 




96 CPS 0802 


West 


08/08/96 




96 CPS 0832 


Becton 


08/20/96 




96 CPS 0906 


Phipps 


09/23/96 





ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 



Gribble & Assoc. & Four Seasons Car Wash v. EHNR 

Wilton Evans v. Environment. Health, & Natural Resources 

David Martin Shelton v. Rockingham County Depl/Public Health. EHNR 

Kinston Urological Associates, P,A. v. N.C. Cancer Program 

Kinston Urological Associates, P. A. v. N.C. Cancer Program 

Elsie Si Tony Ceechini v. Environment. Health, & Natural Resources 

United Organics Corporation v. Environment, Health, &. Natural Res. 

Gerald Mac Clamrock v. Environment, Health, Sl Natural Resources 

John Milazzo v. Environment, Health, & Natural Resources 

Wayne Marshall. Pres. Metro Area Dev., Inc. v. EHNR 



95 EHR 0576 


Gray 


04/25/96 






95 EHR 0843 


Reilly 


07/17/96 






95 EHR 0941 


West 


05/01/96 






95 EHR 1198*^ 


Nesnow Smith 


03/27/96 


11:02 NCR 


97 


95 EHR 1199*- 


Nesnow Smith 


03/27/96 


11:02 NCR 


97 


95 EHR 1240 


Reilly 


04/22/96 






96 EHR 0064 


Nesnow Smith 


07/01/96 






96 EHR 0168 


Phipps 


05/06/96 






96 EHR 0644 


Reilly 


08/13/96 






96 EHR 0826 


West 


10/01/96 







Coastal Resources 



Martin W. Synger v. Division of Coastal Management 95 EHR 1006 Chess 

J. E. Smith Construction Co. v. Division of Coastal Management 96 EHR 0074 Nesnow Sn 



05/13/96 
02/23/96 



1182 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
>fUMBER 



AL.I 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Theodore D. Barns v. Town of Long Beach, NC & Coastal Mgmt, EHNR96 EHR 0277 West 



Environmental Health 

Forest Gate Motel v. Environment, Health, and Natural Resources 
Paradise Ridge Home Owners by Anne Norhum v. EHNR, Env. Health 

Environmental Management 

Frank A. Corriher & Sons Well Drilling, Inc. v. Env. Mgml., EHNR 
Herman E. Smith v. Division of Environmental Management 
Conover Lumber Co., Inc. v. EHNR, Division of Environmental Mgmt. 
Jack West d/b/a Jack West Tree Service v. Environmental Mgml. Comm. 
The Smithfield Packing Co., Inc., v. EHNR, Environmental Mgmt. 
and 
Citizens for Clean Industry, Inc. and Bladen Environment 
Clover M Farms, Inc. v. EHNR, Division of Environmental Management 
Providence Glen Associates v. Environmental Management, EHNR 

Land Resources 

K&G Properties, Inc. v. EHNR, Division of Land Resources 
Marine Fisheries 



96 EHR 0076 
96 EHR 0162 



Robert I. Swinson, Sr. v. EHNR, Health & Nat. Res., Marine Fisheries 95 EHR 0320 
Grayden L. Fulcher and Michael Styron, Sr. v. Div. of Marine Fisheries 96 EHR 0003 
Johnny R. Stotesberry v. Marine Fisheries Commission 96 EHR 0072 



SoHd Waste Management 

R. Donald Phillips v. EHNR, Solid Waste Management Division 
R. Donald Phillips v. EHNR, Solid Waste Management Division 

WIC Program 



West 
Phipps 



95 EHR 0048 


Phipps 


95 EHR 0962 


West 


95 EHR 1081 


Reilly 


95 EHR 1421 


Morrison 


95 EHR 1474 


West 


96 EHR 0405 


Becton 


96 EHR 0648 


Becton 



95 EHR 1078 Nesnow Smith 



95 EHR 1190*^ 

96 EHR 0554*' 



Gray 
Gray 



Lazelle Marks v. EHNR, Division of Maternal and Child Health 95 EHR 0870 

Hani Sader v. Nutrition Services, Div/Matemal & Child Health, EHNR 96 EHR 0054 

Bob's Quick Mart, Bobby D. Braswell v. Env., Health, & Natural Res. 96 EHR 0091 

Larry E. Mis v. USDA-Food/Cons Svc, Cory Menees-WIC Prog., EHNR 96 EHR 0164 

Naser H. Hammad v. Dept. of Environment, Health, & Natural Resources 96 EHR 0632 

Jamil M. Saleh v. Dept. of Environment, Health, & Natural Resources 96 EHR 0634 

Khaled M. Alzer v. Dept. of Environment, Health, & Natural Resources 96 EHR 0721 



EQUAL EMPLOYMENT OPPORTUNTTIES 

Carl D. Davis v. Department of Correction 



05/09/96 



06/17/96 
05/06/96 



09/20/96 
04/30/96 
04/12/96 
04/08/96 
07/03/96 



06/10/96 
08/12/96 



03/25/96 



05/22/96 
05/22/96 



West 


03/27/96 


West 


05/22/96 


Nesnow Smith 


04/02/96 


Phipps 


03/19/96 


Reilly 


07/09/96 


Phipps 


09/04/96 


Reilly 


07/30/96 



11:14 NCR 1191 



Chess 


03/29/96 


11:03 NCR 


168 


Reilly 


03/06/96 






Gray 


08/19/96 


11:11 NCR 


955 



91 EEC 1101 Nesnow Smith 



05/06/96 



HUMAN RESOURCES 

Cassandra M. Deshazo v. Christine E. Carroll, Chf Chid Abuse/Neg. Sec 95 DHR 1410 
Medicus Robinson v. Department of Human Resources 96 DHR 0167 



Division of Child Development 

Molly Fallin v. Department of Human Resources 
Molly Fallin v. Department of Human Resources 
Mary T. Hill v. DHR, Division of Child Development 
lola Roberson v. DHR, Division of Child Development 
Zannie M. Allen v. DHR, Division of Child Development 

Division of Facility Services 



Eloise Brown v. Dept. of Human Resources, Division of Facility Services 95 DHR 1002 
Harry Martin Bastian v. DHR, Division of Facility Services 96 DHR 0287 

Certificate of Need Section 



Phipps 
Nesnow Smith 



94 DHR 0872*' Gray 

95 DHR 1013*^ Gray 
95 DHR 1 192 Phipps 

95 DHR 1244 Gray 

96 DHR 0304 Gray 



Phipps 
West 



03/28/96 
04/12/96 



05/15/96 
05/15/96 
03/27/96 
05/16/96 
08/15/96 



03/07/96 
08/21/96 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1183 



CONTESTED CASE DECISIONS 



ACENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Nash Hospitals, Inc. v. DHR. Div/Facility Sen.'icc8, Cert, of Need Sect. 95 DHR 1176*' Phipps 
Pitt Cty Mem. Hospital. Inc. v. DHR. Div/Facility Sries, Cert/Need Sect. 95 DHR IIVT*' Phipps 



Group Care Licensure Section 

Alex L. McCall v. DHR. Div/Facility Svcs, Group Care Licensure Sec. 95 DHR 1456 
DHR. Facility Services. Group Care Licensure Sect. v. Petrova Evans 96 DHR 0544 

Leola Barnes. Shaw Family Care v. DHR. Fac. Svcs. Group Care Lie. 96 DHR 0626 

Medical Facilities Licensure Section 



Nesnow Smith 

Phipps 

West 



05/23/96 
05/23/96 



03/26/96 
08/21/96 
10/01/96 



11:06 NCR 
11:06 NCR 



389 
389 



Deborah Reddick V. Department of Human Resources 96 DHR 0240 Reilly 06/18/96 

Stacev Yvette Franklin v. Facility Services, Medical Facilities Lie. Sec. 96 DHR 0358 Morrison 05/16/96 



96 DHR 0129 
96 DHR 0637 



Division of Medical Assistance 

Judy Malcuit. Re Melissa Malcuit v. DHR. Div. of Medical Assistance 
Durham Reg. Hsptl. Behavioral Hlth Svcs. v. Medical Assistance. DHR 

Division of Social Services 

Crystean Fields v. Department of Human Resources 

Rozena Chambliss v. Department of Human Resources 

Addie & Major Short v. Department of Human Resources 

Mr. and Mrs. Jessie Stevenson v. DHR, Division of Social Services 

William G. Fisher v. DHR. Div. of Social Services. Prog Integrity Branch 95 DHR 1234 

Vema F. Nunn v. Department of Human Resources 

Nancy Hooker. Helen Tyndall v. Department of Human Resources 

ChiU Support Enforcement Section 



Gray 
West 



06/12/96 
09/20/96 



95 DHR 1001 


Gray 


07/05/96 


95 DHR 1044 


Nesnow Smith 


03/12/96 


95 DHR 1063 


Morrison 


03/19/96 


95 DHR 1072 


Phipps 


03/15/96 


95 DHR 1234 


Morrison 


03/19/96 


95 DHR 1330 


Gray 


04/11/96 


96 DHR 0155 


Gray 


04/26/96 



Donald E. Rideoul Jr. v. Department of Human Resources 
Christopher F. Roakcs v. Department of Human Resources 
Claude Eure Jr. v. Department of Human Resources 
Richard R. Fox, Sr. v. Department of Human Resources 
Joselilo D. Pilar v. Department of Human Resources 
David Lee Grady v. Department of Human Resources 
Patrick Orlando Crump v. Department of Human Resources 
Peter Robert Kovolsky v. Department of Human Resources 
Tony Lee Zapata v. Department of Human Resources 
Lawrence Dow Dean v. Department of Human Resources 
Carl E. Coffey v. Department of Human Resources 
Keith Dewayne Senters v. Department of Human Resources 
Lonnie Dawes v. Department of Human Resources 
Mickey Turner v. Department of Human Resources 
James Joseph Gallagher v. Department of Human Resources 
James Thomas McRae v. Department of Human Resources 
Vincent E. Koehler v. Department of Human Resources 
David J. Moseley v. Department of Human Resources 
Derrick L. Conyers v. Department of Human Resources 
Charles Edward Smith v. Department of Human Resources 
Kevin Vereen v. Department of Human Resources 
James Curtis Witwer v. Department of Human Resources 
Thomeli Bowden v. Department of Human Resources 
Henry S. Sada v. Department o( Human Resources 
Charles F. Moore v. Department o( Human Resources 
Daniel Leslie Baker v. Department of Human Resources 
Kenneth L. Lindsey v. Department of Human Resources 
John L. Pike v. Department of Human Resources 
Wm. R. Evans v. Department of Human Resources 
Rory J. Curry v. Department of Human Resources 
Lorin A. Brown v. Department of Human Resources 
Marcus Anthony Butts v. Department of Human Resources 
Cynthia Pinder v. Department of Human Resources 
Rhonnie J. Williams v. Department of Human Resources 
Ramon Domenech v. Department oi Human Resources 
Lennard J. Watson v. Department of Human Resources 
Dennis L. McNeill v. Department of Human Resources 



95 CSE 0952 


ReiUy 




04/18/96 


95 CSE 


1131 


Becton 




05/03/96 


95 CSE 


1155 


Phipps 




06/12/96 


95 CSE 


1169 


Becton 




03/19/96 


95 CSE 


1180 


Chess 




03/01/96 


95 CSE 


1218 


Morrison 


03/26/96 


95 CSE 


1221 


Nesnow 


Smith 


03/05/96 


95 CSE 


1230 


Becton 




03/11/96 


95 CSE 


1266 


Gray 




05/02/96 


95 CSE 


1267 


Morrison 


03/29/96 


95 CSE 


1270 


Nesnow 


Smith 


03/15/96 


95 CSE 


1273 


Phipps 




04/01/96 


95 CSE 


1274 


Nesnow 


Smith 


06/12/96 


95 CSE 


1278 


Nesnow 


Smith 


03/14/96 


95 CSE 


1280 


Chess 




03/19/96 


95 CSE 


1296 


Chess 




03/15/96 


95 CSE 


1301 


Phipps 




05/09/96 


95 CSE 


1304 


Chess 




03/29/96 


95 CSE 


1308 


Reilly 




03/13/96 


95 CSE 


1309 


West 




03/07/96 


95 CSE 


1315 


Phipps 




05/06/96 


95 CSE 


1331 


Becton 




03/26/96 


95 CSE 


1345 


Morrison 


03/07/96 


95 CSE 


1367 


Nesnow 


Smith 


03/21/96 


95 CSE 


1369 


Chess 




03/27/96 


95 CSE 


1373 


Morrison 


03/12/96 


95 CSE 


1375 


West 




06/24/96 


95 CSE 


1376 


Nesnow 


Smith 


03/21/96 


95 CSE 


1377 


Becton 




03/11/96 


95 CSE 


1380 


Mann 




03/15/96 


95 CSE 


1382 


Reilly 




04/18/96 


95 CSE 


1405 


Nesnow 


Smith 


03/27/96 


95 CSE 


1406 


Becton 




03/11/96 


95 CSE 


1407 


Chess 




05/06/96 


95 CSE 


1408 


Phipps 




03/11/96 


95 CSE 


1414 


Mann 




08/23/96 


95 CSE 


1435 


Becton 




03/13/96 



1184 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



CONTESTED CASE DECISIONS 



AGENCY 



Tony A. Rogers v. Department of Human Resources 

Rick E. Alkins v. Department of Human Resources 

Timothy A. Ratley (Jeanes) v. Department of Human Resources 

Richard E. Reader v. Department of Human Resources 

Wendel McDonald v. Department of Human Resources 

Wilbur Dewayne Bault v. Department of Human Resources 

Reginald B. Bratton Sr. v. Department of Human Resources 

James C. Smith v. Department of Human Resources 

Ronald D. Johnson v. Department of Human Resources 

Johnny Lcary v. Department of Human Resources 

Jimmy Strickland v. Department of Human Resources 

John W. Scott V. Department of Human Resources 

Calvin S. Austin v. Department of Human Resources 

Derek Henslee v. Department of Human Resources 

Donald L. Carr, Jr. v. Department of Human Resources 

Norman Waycasler v. Department of Human Resources 

Andre Duncan v. Department of Human Resources 

Lorenzo Wilson v. Department of Human Resources 

Mark Kevin Bums v. Department of Human Resources 

Cyril Lloyd Payne v. Department of Human Resources 

Charles H. Johnson v. Department of Human Resources 

Willie James Myers v. Department of Human Resources 

Christopher F. Byrne v. Department of Human Resources 

Richard Painall Burch v. Department of Human Resources 

Charles Gillispie v. Department of Human Resources 

Teresa Reynolds v. Department of Human Resources 

Thomell Bowden v. Department of Human Resources 

Kenneth Edward Bums v. Department of Human Resources 

Carl R. Ritter v. Department of Human Resources 

William Charles Rorie v. Department of Human Resources 

Leon Gibson v. Department of Human Resources 

Dioni Delvalle, U v. Department of Human Resources 

Gerald Roger Beachum Jr. v. Department of Human Resources 

Anderson I. Wardlow v. Department of Human Resources 

Daniel J. Carter v. Department of Human Resources 

Kelvin Tarlton v. Department of Human Resources 

Steven Craig Mooney v. Department of Human Resources 

John L. Cherry Jr. v. Department of Human Resources 

Arthur Jemerson v. Department of Human Resources 

Michael S. Covington v. Department of Human Resources 

Gary Steele v. Department of Human Resources 

Terry Sealey v. Department of Human Resources 

Jackie L. Kopczick v. Department of Human Resources 

Virginia McDowell Ramsey v. Department of Human Resources 

D. Wayne Gray v. Department of Human Resources 

Claude R. Anderson v. Department of Human Resources 

Alan Kendell Locklear v. Department of Human Resources 

Douglas F. McBryde v. Department of Human Resources 

Thomas White v. Department of Human Resources 

James Trevor Emerson v. Department of Human Resources 

Ray Davis Hood v. Department of Human Resources 

Leon McNair v. Department of Human Resources 

John William White v. Department of Human Resources 

Hazel L. Walker v. Department of Human Resources 

Tayloria Y. Manns v. Department of Human Resources 

Carl S. McNair v. Department of Human Resources 

David Agurs v. Department of Human Resources 

King Sanders Jr. v. Department of Human Resources 

Sandra Kay Carpenter v. Department of Human Resources 

Christopher Clyde Bamno Jr. v. Department of Human Resources 

Clinton Sutton v. Department of Human Resources 

Dave L. James v. Department of Human Resources 

Jonathan Bernard Copper v. Department of Human Resources 

Lisa Privette v. Department of Human Resources 

Franklin D. Deese v. Department of Human Resources 

Mark Allen Rose Sr. v. Department of Human Resources 

Mark P. Crosby v. Department of Human Resources 

Renee G. Arriola v. Department of Human Resources 



CASE 




DATE OF 


NUMBER 


AI4 


DECISION 


95 CSE 1436 


Chess 


05/16/96 


95 CSE 1437 


Phipps 


04/01/96 


95 CSE 1465 


Morrison 


03/26/96 


95 CSE 1469 


Nesnow Smith 


04/29/96 


95 CSE 1470 


Bccton 


07/29/96 


95 CSE 1475 


West 


03/13/96 


96 CSE 0002 


Mann 


08/23/96 


96 CSE 0034 


Gray 


05/10/96 


96 CSE 0084 


Nesnow Smith 


03/27/96 


96 CSE 0085 


Becton 


05/03/96 


96 CSE 0119 


Chess 


07/08/96 


96 CSE 0130 


Mann 


03/15/96 


96 CSE 0140 


Phipps 


05/17/96 


96 CSE 0188 


Reilly 


05/17/96 


96 CSE 0200 


West 


05/30/96 


96 CSE 0245 


Becton 


05/16/96 


96 CSE 0249 


Chess 


09/25/96 


96 CSE 0257 


Phipps 


05/06/96 


96 CSE 0271 


Morrison 


06/24/96 


96 CSE 0272 


Reilly 


05/31/96 


96 CSE 0295 


West 


07/15/96 


96 CSE 0299 


Becton 


07/19/96 


96 CSE 0336 


Chess 


06/26/96 


96 CSE 0339 


Phipps 


06/27/96 


96 CSE 0365 


Mann 


07/23/96 


96 CSE 0369 


Gray 


07/23/96 


96 CSE 0370 


Morrison 


05/17/96 


96 CSE 0379 


Reilly 


07/18/96 


96 CSE 0380 


West 


05/08/96 


96 CSE 0388 


Nesnow Smith 


08/01/96 


96 CSE 0389 


Becton 


07/02/96 


96 CSE 0407 


Chess 


07/17/96 


96 CSE 0411 


Phipps 


06/24/96 


96 CSE 0412 


Mann 


08/05/96 


96 CSE 0417 


Gray 


06/24/96 


96 CSE 0424 


Morrison 


05/29/96 


96 CSE 0425 


Reilly 


07/08/96 


96 CSE 0426 


West 


06/24/96 


96 CSE 0427 


Nesnow Smith 


08/01/96 


96 CSE 0428 


Becton 


08/02/96 


96 CSE 0429 


Chess 


08/26/96 


96 CSE 0430 


Phipps 


05/29/96 


96 CSE 043 1 


Mann 


06/05/96 


96 CSE 0464 


Gray 


08/02/96 


96 CSE 0465 


Morrison 


08/02/96 


96 CSE 0502 


Reilly 


07/22/96 


96 CSE 0503 


West 


05/30/96 


96 CSE 0518 


Becton 


08/19/96 


96 CSE 0519 


Chess 


08/29/96 


96 CSE 0545 


Phipps 


07/25/96 


96 CSE 0547 


Mann 


09/12/96 


96 CSE 0557 


Morrison 


08/08/96 


96 CSE 0558 


Reilly 


08/14/96 


96 CSE 0559 


West 


06/24/96 


96 CSE 0564 


Nesnow Smith 


08/15/96 


96 CSE 0568 


Becton 


06/24/96 


96 CSE 0580 


Chess 


06/13/96 


96 CSE 0581 


Phipps 


08/22/96 


96 CSE 0595 


Gray 


08/29/96 


96 CSE 0603 


Morrison 


08/26/96 


96 CSE 0629 


Reilly 


08/29/96 


96 CSE 0638 


West 


07/15/96 


96 CSE 0642 


Phipps 


09/03/96 


96 CSE 0651 


Becton 


09/30/96 


96 CSE 0690 


Mann 


07/23/96 


96 CSE 0732 


Morrison 


09/30/96 


96 CSE 0733 


Reilly 


09/30/96 


96 CSE 0790 


Becton 


08/14/96 



PUBLISHED DECISION 
REGISTER CITATION 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1185 



CONTESTED CASE DECISIONS 



AGENCY 



Melinda S. Tunner v. Department of Human Resources 
Jeanne G. Bishop v. Department of Human Resources 
Rebecca Beaver v. Department of Human Resources 
Vivian B. While v. Department of Human Resources 
Mary R. Mahon v. Department of Human Resources 
Mary R- Mahon v. Department of Human Resources 
Laura Heidorf v. Department of Human Resources 
Lois Floyd Barber v. Department of Human Resources 

INSURANCE 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


95 DCS 0921 


Morrison 


05/09/96 


95 DCS 0958 


West 


04/04/96 


95 DCS 1114 


Reilly 


04/26/96 


95 DCS 1115 


Phipps 


06/04/96 


95 DCS 1137*' 


Chess 


06/11/96 


95 DCS 1142*' 


Chess 


06/11/96 


96 DCS 0065 


Reilly 


03/22/96 


96 DCS 0176 


Gray 


07/30/96 



PUBLISHED DECISION 
REGISTER CITATION 



Carol M. Hall v. Teachers & Stale Employees Comp. Major Medical Plan 95 INS 1141 Phipps 04/01/96 

Arthur Wayne Dempsey v. Department of Insurance 95 INS 1255 Nesnow Smith 04/22/96 

Deborah B. Beavers v. Teachers &. St. Emp. Comp. Major Med. Plan 95 INS 1411 Nesnow Smith 05/10/96 

Nadia A. Hakim v. Department of Insurance 95 INS 1422 Nesnow Smith 03/26/96 

Mary Alice Casey v. Department of Insurance 96 INS 0148 Reilly 08/14/96 



11:05 NCR 308 



JUSTICE 

Wendy Atwood v. Department of Justice (Company Police Program) 
Deborah K. Torrance v. Company Police Program Administrator 

Education and Training Standards Division 

Freddie Levem Thompson v. Criml. Justice Ed. & Training Stds. Comm. 
Shane Douglas Crawford v. Sheriffs' Ed. & Training Stds. Comm. 
Charles Henry Daniels v. Criml. Justice Ed. &. Training Stds. Comm. 
Valerie Maxine Brewinglon v. Criml. Justice Ed. & Training Stds. Comm. 
Patricia Josephine Bonanno v. Sheriffs' Ed. &. Training Stds. Comm. 
Douglas Allan Stuart v. Sheriffs' Ed. &. Training Stds. Comm. 
Rick M. Evoy v. Criminal Justice Ed. & Training Stds. Comm. 
Windell Daniels v. Cnminal Justice Ed. & Training Stds. Comm. 
Gregory Lee Daughtridge v. Sheriffs' Ed. & Training Stds. Comm. 
Sherrie Ann Gainey v. Sheriffs' Ed. & Training Stds. Comm. 
Stuart Hugh Rogers v. Sheriffs' Ed. &. Training Stds. Comm. 
Brian Thomas Craven v. Sheriffs' Ed. & Training Stds. Comm. 
Larry D. Weston v. SherifTs' Ed. &. Training Stds. Comm. 
Carlton Gerald v. Criminal Justice Ed. & Training Stds. Comm. 
Ken Montie Oxendine v. Criminal Justice Ed. & Training Stds. Comm. 
James Leon Hunt v. Criminal Justice Ed. &. Training Stds. Comm. 
David Kent Knight v. SherifTs* Ed. & Training Stds. Comm. 
Demetrius Amez Brown v. Criminal Justice Ed. & Training Stds. Comm. 
Claude F. Nunnery v. Sheriffs' Ed. &. Training Stds. Comm. 
John Charles Maloney v. Sheriffs' Ed. &. Training Stds. Comm. 
Jimmie L. Cooper v. Sheriffs' Ed. & Training Stds. Comm. 
Jerry Glenn Monette v. Sheriffs' Ed. & Training Stds. Comm. 
Carlton Gerald v. Criminal Justice Ed. &. Training Stds. Comm. 
Warren Scott Nail v. Criminal Justice Ed. &. Training Stds. Comm. 
George Willie Gilliam v. Sheriffs' Ed. & Training Stds. Comm. 
Glenn R. Brammer v. Sheriffs' Ed. & Training Standards Comm. 
Timothy Wayne Fulford v. Sheriffs' Ed. & Training Stds. Comm. 
Brent Lee Millsaps v. Sheriffs' Ed. & Training Stds. Comm. 



96 DOJ 0111 
96 DOJ 0363 



Chess 
Becton 



08/07/96 
08/14/96 



95 DOJ 0731 


Chess 




02/29/96 


95 DOJ 0943 


Reilly 




05/17/96 


95 DOJ 1070 


West 




06/12/96 


95 DOJ 1129 


Nesnow S 


mith 


04/12/96 


95 DOJ 1152 


Chess 




03/25/96 


95 DOJ 1189 


Morrison 




06/06/96 


95 DOJ 1235 


Chess 




03/25/96 


95 DOJ 1320 


Gray 




07/24/96 


96 DOJ 0027 


Reilly 




03/19/96 


96 DOJ 0028 


Becton 




08/09/96 


96 DOJ 0029 


West 




06/18/96 


96 DOJ 0036 


Gray 




07/09/96 


96 DOJ 0037 


Nesnow S 


mith 


06/12/96 


96 DOJ 0068 


Gray 




03/26/96 


96 DOJ 0071 


West 




03/28/96 


96 DOJ 0077 


Phipps 




07/25/96 


96 DOJ 0115 


West 




03/28/96 


96 DOJ 0138 


Becton 




08/09/96 


96 DOJ 0305 


Gray 




08/28/96 


96 DOJ 0306 


Nesnow S 


mith 


08/16/96 


96 DOJ 0352 


Morrison 




07/12/96 


96 DOJ 0420 


Morrison 




07/26/96 


96 DOJ 0432 


Becton 




08/07/96 


96 DOJ 0576 


Becton 




08/07/96 


96 DOJ 0656 


Morrison 




08/02/96 


96 DOJ 0839 


Nesnow S 


•nith 


09/05/96 


96 DOJ 0840 


Nesnow S 


Tilth 


09/16/96 


96 DOJ 0841 


Chess 




09/24/96 



11:10 NCR 874 



Private Protective Services Board 



Timothy A. Hawkins v. Private Protective Services Board 
William F, Combs v. Private Protective Services Board 
Randy C. Hoyle v. Private Protective Services Board 
Robert A. Gibson v. Private Protective Services Board 
Jimmy D. Matthews v. Private Protective Serv'ices Board 
Johnnie Lee King v. Private Protective Services Board 
Thomas R. Harris v. Private Protective Services Board 
Private Protective Services Board v. Henry E. Byrd, Jr. 
Private Protective Services Board v. Charles T. Mathis 



95 DOJ 1419 


West 




04/12/96 


96 DOJ 0022 


West 




03/22/96 


96 DOJ 0024 


Nesnow 


Smith 


06/10/96 


96 DOJ 0386 


Nesnow 


Smith 


07/03/96 


96 DOJ 0676 


Reilly 




07/11/96 


96 DOJ 0677 


Reilly 




07/11/96 


96 DOJ 0761 


Reilly 




07/11/96 


96 DOJ 0796 


Mann 




08/19/96 


96 DOJ 0798 


Mann 




08/27/96 



MEDICAL BOARD 

Medical Board v. Martin A. Hatcher, M.D. 



92 BME 0510 



Gray 



06/28/96 



11:08 NCR 555 



1186 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



PUBLIC INSTRUCTION 

Lavern K. Suggs v. NO Board of Education 

J.T.S. & T.S., Parents of EMS. v. Chapel Hill-Carrboro City Schl. Sys. 

L.O. V. Charlotte-Mecklenburg Board of Education 

Candyce Ewanda Newsome v. Hertford County Board of Education 

W. and G.B., on Behalf of C.B. v. Winston-Saletn/Forsyth Cty. Schools 

Cyvonne Rush Bryant v. NC Slate Board of Education 

Blaise Malveau v. Cumberland County Board of Education 

Blaise Malveau v. Cumberland County Board of Education 

John Barlow v. Watauga County Board of Education 

John L. Archer v. Department of Public Instmction 

Pamela F. Cummings v. Department of Public Instruction 

Susie Whitley/Brandon Whitley v. Charlotte-Mecklenburg Bd. of Ed. 

Michael Wayne Geter v. Charlotte-Mecklenburg School Board 

STATE PERSONNEL 



Department of Administration 

Jimmie A. Hughes, Jr. v. Department of Administration 96 

Jonathan L. Fann v. Department of Administration, Admin. Personnel 96 
Carlton Gerald v. State Capitol Police, Department of Administration 96 

Administrative Office of the Court 

Ethel R. Tyson v. NC Judicial Dept., Administrative Office of the Court 96 

Appalachian State University 

Janice S. Walton v. Appalachian St University, Claude Cooper, Bill Ragan96 
Janice S. Carroll v. Appalachian St University, Claude Cooper, Bill Ragan96 



95 EDC 0383 


Nesnow S 


mith 


03/13/96 


95 EDC 1194 


Mann 




04/12/96 


96 EDC 0285 


Mann 




05/31/96 


96 EDC 0344 


Chess 




05/15/96 


96 EDC 0349 


Mann 




09/03/96 


96 EDC 0591 


Becton 




09/11/96 


96 EDC 0613 


Chess 




08/14/96 


96 EDC 0614 


Chess 




08/14/96 


96 EDC 0623 


Reilly 




07/24/96 


96 EDC 0678 


Nesnow S 


mith 


08/02/96 


96 EDC 0742 


Nesnow S 


mith 


08/16/96 


96 EDC 0964 


Chess 




09/17/96 


96 EDC 1036 


West 




09/23/96 



11;01 NCR 50 



DSP 0008 


Reilly 


07/23/96 


OSP 0042 


Gray 


05/24/96 


DSP 0116 


Gray 


04/25/96 



OSP 0080 



OSP 0062 
OSP 0063 



Caldwell County 

Blake C. Pace v. Caldwell County 96 OSP 0047 

NC Central University 

Francina Y. Tate v. Chancellor Julius L. Chambers, NC Central Univ. 95 OSP 1432 



Central North Carolina School for the Deaf 

Felicia S. Milton v. Central North Carolina School for the Deaf 

Department of Correction 



95 OSP 1241 



Haydee Craver v. Department of Correction, Pender Corre\;tlonal Inst. 

Gregory Allen Jones v. Department of Correction, Supt. Bonnie Boyctte 

Carolyn Check v. Department of Correction 

Calvia L. Hill v. Department of Correction, McCain Correctional Hospital 95 

Alieha Louise Slaley v. Randolph Correctional Center 

Brenda Propst v. Foothills Correctional Institution 

Delon D. Solomon v. Department of Correction 

Alisha Louise Slaley v. Randolph Correctional Center 

Haydec C. Craver v. Department of Correction, Christopher Phillips 

Dwight Taylor, Mike Estep, Jackie Boone. Robert Pitman, Jeffery Clark 

V. Department of Correction 
Dwighl Taylor, Mike Estep, Jackie Boone, Robert Pitman, Jeffery Clark 

V. Department of Correction 
Dwight Taylor, Mike Estep, Jackie Boone, Robert Pitman, Jeffery Clark 

V. Department of Correction 
Dwight Taylor, Mike Estep, Jackie Boone, Robert Pitman, Jeffery Clark 

V. Department of Correction 
Dwight Taylor, Mike Estep, Jackie Boone, Robert Pitman, Jeffery Clark 

V. Department of Correction 
Rebecca A. Faison v. Department of Correction for Women 
Calvia L. Hill v. Department of Correction, McCain Correctional Hospital 96 



Nesnow Smith 



West 

West 



Morrison 



Nesnow Smith 



Chess 



03/15/96 



03/13/96 
03/07/96 



04/01/96 



04/22/96 



05/17/96 



95 OSP 1046 


Gray 


03/12/96 


95 OSP 1290 


Phipps 


05/14/96 


95 OSP 1441 


Nesnow Smith 


09/19/96 


95 OSP 1460 


Gray 


05/17/96 


96 OSP 0092 


Gray 


06/03/96 


96 OSP 0199 


Morrison 


04/09/96 


96 OSP 0258 


West 


07/02/96 


96 OSP 0261 


Morrison 


08/05/96 


96 OSP 0348 


Phipps 


05/15/96 


96 OSP 0372*' 


Nesnow Smith 


07/05/96 


96 OSP 0373*' 


Nesnow Smith 


07/05/96 


96 OSP 0374*' 


Nesnow Smith 


07/05/96 


96 OSP 0375*' 


Nesnow Smith 


07/05/96 


96 OSP 0376*' 


Nesnow Smith 


07/05/96 


96 OSP 0383 


Becton 


10/01/96 


96 OSP 0397 


Gray 


08/15/96 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1187 



COXTESTED CASE DECISIOSS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



94 OSP 1174*'° 

95 OSP 0249*' 
95 OSP 0836*'" 
95 OSP 1050*' 



95 OSP 0176 



94 OSP 1721 



Tony R. Broffman v. Department of Correvlion 96 OSP 0625 

Mar> Hargravcs v. Departmenl of Correction 96 OSP 0674 

Michael S. Doe \\ Caswell Center 96 OSP 0691 

Timothy L, Willis v. Caswell Correctional Center 96 OSP 0715 

Dipartrmnt of Crime Control and Public Safety 

Jerry Lee Fields v. Slate Highway Patrol 

Gene Wells v. Crime Control & Public Safety. Stale Highway Patrol 

Jerry Lee Fields v. State Highway Patrol 

Gene Wells v. Crime Control & Public Safety, Suie Highway Patrol 

Durham County Health Department 

Lylla D. Stockton v. Durham County Health Department 

Easi Carolina University 

Gregory Lapieki v. East Carolina University 

Bela E. Kar\aly, Ph.D. v. ECU Bd. of Trustees, Ch. Richard R. Eakin 96 OSP 0150 

Employment Security Commission 

Gene S. Baker v. Gov. James B. Hunt. Jr.. Ann Q, Dun.;an. Chairman. 93 OSP 0707 

Employment Security Commission 

William Herbert Allen v. Employment Security Commission 94 OSP 1688 

Patricia Gary v. Employment Security Commission 95 OSP 0793 

Tonderlier Lynch v. Emp. Security Comm.. Austin Quality Foods, Inc. 96 OSP 0275 

Department of Environment, Health, and SaSural Resources 

Roberta .Ann "Robin" Hood v. Environment. Health. & Natural Resources 95 OSP 0035 
Kalhy B. Vinson v. Dept. of Environment. Health, &. Natural Resources 95 OSP 0203 

Fayetteville State University 

William C. Neal v. Fayetteville Slate University 95 OSP 0392 

Guilford County Area Mental Health, Developmental Disabilities and Substance Abuse 

Stuart Klatte v. Guilford Cty Area MH/DD/SAS. St. Per Comm. OSP 95 OSP 1179 

Department of Human Resources 

Ophelia Webb v. Edard R. Inman. Dir. Alamance Cty DSS. Alamance 

Cty DSS. Alamance County, and DHR 
Gail Marie Rodgers Lincoln v. DHR. DMH T)D SAS-Cherr\ Hosp., 

Cherry Hospital 
Cynthia D. Hickman v, DHR, Central School for the Deaf 
Johnny Earl 'I'oung \'. Unit Head Director of Food & Nutrition 
Mary A. Boogaerts v. Cherry Hospital, Goldsboro, NC 
Kelvin Parter v. Dorothea Dix Hospital 

Johnny Earl ^'oung v. Unit Head Director of Food &. Nutrition 
Johnny Earl 'i'oung v. Unit Head Director of Food &. Nutrition 

Kim A. Bell v. Walter B. Jones Alcohol & Drug Abuse Treatment Center 96 OSP 0597 
Lynn S. Hales v. John Umstead Hospital 

Buncombe County Department of Social Services 

Kathy Da^is v. Buncombe County Department of Social Services 95 OSP 14S7 

Caswell Center 



Becton 

Nesnow Smith 
Phipps 
West 



Gray 

Nesnow Smith 
Gray 
Nesnow Smith 



West 



ReiUy 
Chess 



Becton 

West 
Chess 
Chess 



ReiUy 
Gray 



Nesnow Smith 



Nesnow Smith 



08/29/96 
09/05/96 
09/23/96 
07/30/96 



08/05/96 
07,73/96 
08/05/96 
07/23/96 



07/02/96 



09 76/96 
05/08/96 



05/16/96 

06/11/96 
05/14/96 
05.'21,/96 



04/09/96 
09/18/96 



04/22/96 



07/19/96 



96 OSP 0112 


Gray 


03/13/96 


96 OSP 0159 


Chess 


06/17/96 


96 OSP 0191 


Becton 


09/23/96 


96 OSP 0217 


Reillv 


08/13/96 


96 OSP 0269 


Becton 


05,79/96 


96 OSP 0294 


Chess 


08/07/96 


96 OSP 0543 


Reilly 


07/09/96 


96 OSP 0590 


Reilly 


07/09/96 


96 OSP 0597 


Becton 


09/11/96 


96 OSP 0729 


West 


10/02/96 



11:05 NCR 300 



11:13 NCR 1087 



11:10 NCR 865 



West 



08/09/96 



Ramona C. Jenkins v. Department of Human Resources, Caswell Center 89 OSP 0411 Becton 0376/96 

Ramona C, Jenkins v. Department of Human Resources, Caswell Center 91 OSP 0522 Becton 03/26/96 

Franklin D. Sutton v. Department of Human Resources, Caswell Center 94 OSP 0766 Nesnow Smith 0371/96 

Durham County Department of Social Services 



11:02 NCR 89 



1188 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Jan E. Smith v. Durham County Department of Social Services 

Halifax Count}' Department of Social Senices 
Clairhel Thomas v. Halifax County DSS & Director. Halifax County DSS 

Haywood County Department of Social Services 
Carol Hubbard v. Haywood County Department of Social Services 

Division of Medical Assistance 
Harold Wiggins v. Division of Medical Assistance 

O 'Berry Center 
Samuel Geddie v. O'Berry Center 

Roctdngliam County Department of Social Senices 
Lorretta Lawson v. Rockingham County DSS 

Wake County Departtmnt of Social Services 

Phylis Gilbert v. Wake County Department of Social Services 

Department of Insurance 

Larry W. Creech v. Department of Insurance 

Department of Labor 

Kevin P. Kolhe, Sr. v. Department of Labor 

New Hanover County Board of Health 

Tahandeh Zand v. New Hanover County Board of Health 

Department of Public Instruction 

Johnny Leak v. Public Schools of NC, Dept. of Public Instruction 
McLcnnard Jay v. Person County Schools 

Sandhill Community College 

Earl Levon Womack v. Sandhill Community College Bd. of Trustees 

Office of the Slate Controller 

Angela M. Terry v. Office of the Stale Controller 

North Carolina State University 

Vemell Mitchell v. North Carolina Cooperative Extension 

Department of Transportation 

Pearlie M. Simuel-Johnson v. Department of Transportation 

Dorothy J. Grays v. Div. of Motor Vehicles, Dept. of Transportation 

Pearlie M. Simuel-Johnson v. Department of Transportation 

Lisa Ann Lcc v. Department of Transportation 

Melvin Duncan v. Department of Transportation 

Greg Brown v. Department of Transportation 

Jesse Wayne Castle v. State Highway Maint., Guess Rd.. Durham, NC 



95 OSP 1121 



95 OSP 0905 



95 OSP 1084 



95 OSP 1482 



96 OSP 0414 



96 OSP 0471 



95 OSP 1238 



95 OSP 0631 



95 OSP 0968 



95 OSP 1035 



96 OSP 0861 
96 OSP 0862 



96 OSP 0573 



96 OSP 0402 



96 OSP 0132 



Morrison 



West 



Reilly 



West 



West 



Phipps 



Reilly 



Morrison 



Ncsnow Smith 



Phipps 
Phipps 



Phipps 



Becton 



Gray 



94 OSP 0589«' 


Gray 


94 OSP 1044 


Reilly 


95 OSP 0837*' 


Gray 


95 OSP 1099 


Reilly 


95 OSP 1462 


Morrison 


96 OSP 0048 


Reilly 


96 OSP 0087 


Gray 



05/24/96 



05/29/96 



08/30/96 



06/11/96 



06/13/96 



06/13/96 



06/27/96 



06/06/96 



03/14/96 



03/01/96 



09/05/96 
09/04/96 



07/25/96 



08/07/96 



05/10/96 



03/01/96 
04/12/96 
03/01/96 
07/31/96 
03/08/96 
05/02/96 
04/15/96 



11:06 NCR 395 



11:13 NCR 1092 



11:07 NCR 434 



11:01 NCR 58 



11:03 NCR 173 



>- Consolidated cases. 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1189 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



AU 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Archie Brooks v. W. F. Roseer, Departmenl of Transportation 
Jessie L. Allen et al. v. DMV Enforcement Section 
R.L. Singleton v. Department of Transportation 
Stephanie Taylor v. Department of Motor Vehicles 

Tri-County Mental HeaJth Complex 

Dehorah Heil v. Tri-County Mental Health Complex 



96 OSP 0239 
96 OSP 0408 
96 OSP 0683 
96 OSP 0955 



95 OSP 1100 



University of North Carolina 

Pamela B. Edwards v. University of North Carolina at Chapel Hill 

Keith R. Cameron v. University of North Carolina at Chapel Hill 

Jerel H. Bonner v. School of Nursing UNC at Chapel Hill 

Bela E. Karvaly, Ph.D. v. UNC Bd. of Gov,, Pres. CD. Spangler, Jr. 

Carl E. Whigham v. UNC Hospitals at Chapel Hill 

J. Scott Spear* v. Ralph Pederson and UNC-C 

Nellie Joyce Ferguson v. UNC Physicians & Assoc, Charles Foskey. Dir. 96 OSP 0977 



Wake County Board of Health 

Debbie L. VVTiiiley v. Env. Health Div. Wake Cly. Dept. of Health 

STATE TREASURER 

Donald B. Durham v. Teachers' &. St. Employees Retirement Sys. 

UNIVERSITY OF NORTH CAROLINA 

Sylvia Jeffries v. University of NC Hospitals at Chapel Hill 

James E. Boudwin v. University of NC Hospitals at Chapel Hill 

Rufus T. Moore Jr. v. UNC Hospital 

Marcia Spruill v. UNC Hospitals - Patient Accounts 

Charles E. Houlk v. UNC Hospitals 



96 OSP 1090 



92 DST 1066 



Nesnow Smith 
Becton 
Becton 
Bccton 



Nesnow Smith 



05/17/96 
08/12/96 
08/12/96 
08/29/96 



03/22/96 



11:13 NCR 1095 



95 OSP 0842 


Chess 


06/28/96 






95 OSP 1060 


Morrison 


06/24/96 






96 OSP 0026 


Gray 


03/12/96 


11:01 NCR 


61 


96 OSP 0151 


Chess 


05/08/96 






96 OSP 0248 


Qiess 


06/11/96 






96 OSP 0548 


Chess 


08/30/96 






96 OSP 0977 


Phipps 


10/02/96 







Nesnow Smith 



Chess 



09/05/96 



07/17/96 



11:09 NCR 810 



96 UNC 0067 


Gray 


04/16/96 


96 UNC 0343 


Chess 


07/22/96 


96 UNC 0470 


Reilly 


08/12/96 


96 UNC 0500 


Becton 


07/10/96 


96 UNC 0588 


Morrison 


08/09/96 



1190 



NORTH CAROLINA REGISTER 



October 15, 1996 



11:14 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF ROWAN 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

95 EHR 0048 



FRANK A. CORRIHER AND SONS WELL 
DRILLING, INC. 
Petitioner, 



V. 



DIVISION OF ENVIRONMENT MANAGEMENT, 
NC DEPT. OF ENVmONTVlENT, HEALTH, AND 
NATURAL RESOURCES, 
Respondent. 



RECOMMENDED DECISION 



THIS MATTER came on to be heard before Administrative Law Judge Meg Scott Phipps on July 23, 1996 in 
Salisbury, North Carolina. Petitioner was present and represented by David C. Williams, Attorney at Law. Respondent 
was present and represented by Brian J. McGinn, Associate Attorney General. After hearing the testimony, examining the 
evidence, and reviewing the law, the undersigned makes the following: 

FINDINGS OF FACT 

1. Frank Corriher and Sons Well Drilling, Inc. is a well drilling company that has been in operation for 48 
to 49 years. Frank Corriher is retired but still assists his sons, Danny, Joel and Ricky Corriher in the business. 

2. The Department of Environment, Health, and Natural Resources, Division of Environmental Management 
monitors comphance with the N.C. Well Construction Act, G.S. 87-83 et seg. and the rules promulgated pursuant to that 
Act. 

3. Petitioner constructed the well on John Smith's property in Gold Hill, Rowan County, North Carolina on 
April 14, 1993. The well was not put into operation by the owner until November, 1993 when he moved to the property. 

4. Mr. Smith did not pay for the well construction and Petitioner proceeded with a civil collection action. 
After judgment was entered and execution was begun, Mr. Smith paid for the well construction in May 1994. 

5. Fourteen months after construction, on June 13, 1994, John Smith made a telephone complaint to the 
Respondent agency that he had muddy water and milky-looking sediment. 

6. On June 16, 1994, Rob Krebs from the Respondent's Mooresville Regional Office inspected the well site. 
Francis Smith, who lives with John Smith, and Billy Harris, a neighbor, were present. After inspection, it was determined 
that the well met minimum standards in all but two areas: 1) lack of a pump contractor's identification plate; and 2) 10.8 
NTUs of turbidity as suspended solids. Mr. Smith had notice that Mr. Krebs was coming to inspect. 

7. On July 8, 1994, Paul Dahlen from the Respondent's office rechecked the well and the turbidity was 36.4 
NTUs. Mr. Smith had notice that Mr. Dahlen was coming. 

8. On August 5, 1994, Respondent sent to the Petitioner a Notice of Violation which listed the following 
violations: 1) The well was not developed such that the water contained no more than ten Nephelometric Turbidity Units 
(NTUs) of turbidity as suspended solids in accordance with Commission Rule 15A NCAC 2C .0107(h)(2)(B); and 2) a pump 
installer identification plate was not attached to the well casing or enclosure floor in accordance with Commission Rule 15 A 
NCAC 2C .0107(i)(3). 

9. The Notice of Violation provided that in accordance with G.S. 87-94, Petitioner had thirty days to effect 
compliance with the well construction standards and no penalty would be assessed. 

10. On August 10, 1994, Frank Corriher, Ricky Corriher, and Lt. R.J. Rogers went to the Smith residence 

unannounced. The Rowan County Sheriff had asked Lt. Rogers to go with Mr. Corriher. Lt. Rogers has been with the 



11:14 



NORTH CAROLINA REGISTER 



October 15, 1996 



1191 



CONTESTED CASE DECISIONS 



Rowan County Sheriffs Department for thirty years. No one was present from the Respondent's office. Mr. Corriher 
noticed that the well was being run on 1 10 electricity instead of 220. He changed this and ran the pump for 45 minutes. 
There was also no cover on the well. Lt. Rogers observed that the water looked clear in the cup. Rogers then left because 
he did not anticipate any problems. Mr. Smith was not there. Frank Corriher testified that the water was clear in the cup 
except for some iron which is common. He took three samples. The sample which was sent to an independent laboratory, 
Hydrologic, Inc., had 6.4 mg/1 of total suspended solids. Mr. Corriher was and is still convinced that Mr. Smith was 
putting mud in the well. 

1 1. Mr. Smith later called Mr. Corriher and "cussed him out." Mr. Corriher hung up. Mr. Smith called back 
and later called him at home and told him he was going to "send 200 bikers over there." Smith told him never to come onto 
his property again. 

12. On August 30, 1994, Frank Corriher and Lt. Rogers went to the Smith property to check the well. Francis 
Smith was present as well as Jerry Sherill. Paul Dahlen was present for the Respondent. Lt. Rogers left because Mr. Smith 
was not there and he did not think there would be any problems. Mr. Dahlen's inspection log shows that after the water 
was run for 15 minutes, the turbidity was 32 NTXJs. After 1 hour, the turbidity was 84 NTTjs and after 1 hour and 15 
minutes, the turbidity was 42.8 NTUs. Mr. Corriher and Francis Smith agreed to run the water for 24 hours. On August 
31, 1994, the turbidity was 19.9 NTUs. Mr. Dahlen testified that he did not know if the water had been run for 24 hours. 
Mr. Sherill testified that Mr. Corriher advised Francis Smith to run the water to "pump it off. " Francis Smith told him that 
Mr. Smith would not do it. 

13. Barbara Christian has been the Regional Groundwater Supervisor in the Mooresville Regional Office for 
7 years. According to Barbara Christian's telephone log on September 14, 1994, Frank Corriher told her that, "long story; 
"Paul [Dahlen] says when he's going out & Smith puts mud in well; [Smith] doesn't want well fixed - $1600 paid for it - 
wants $3400 for it; can't be dealt w/fairly by Paul due to past run in; talk w/Bob Martin only at Sheriffs Dept.; hit rock 
at [around] 12' but put 35" of casing & grouted full length; if well is pumped off, will be clear." 

14. On September 15, 1994, Paul Dahlen and Barbara Christian made an unannounced visit to inspect the Smith 
well at the request of Mr. Corriher. Although it was unusual to make an unannounced visit, they believed it might be 
warranted in this case. Initial inspection showed 8-9 NTUs of turbidity. As they were prepared to leave, Mr. Smith told 
them they should come back that night and check it. It occurred to Ms. Christian that the well should be checked at peak 
usage. They proceeded to turn on the faucets outside, at the sink, and in the bathroom. After running the water for five 
minutes, the water had 78 NTUs. 

15. On September 19, 1994, Barbara Christian made the following notation regarding a telephone call with Mr. 
Corriher: [Corriher] "doesn't want to take his crew in & get into trouble there; [Christian] can arrange for one MRO staff 
to be on site; but penalty will be assessed." 

16. On December 19, 1994, Respondent assessed a civil penalty in the amount of $760.00 against the Petitioner 
for violation of 15A NCAC 2C .0107(Ti)(2)(B) for "failing to develop a well such that the water contained no more than 10 
NTUs of turbidity as suspended solids during the period of August 8, 1994 through September 15, 1994, a total of 38 days, 
based upon a penalty of $20.00 a day." 

17. The Respondent also considered the factors set out in G.S. 143B-282. 1(b) in determining the amount of 
the penalty. The only factor found to be "significant" was the duration of the violation. Also "moderately significant" was 
the amount of money saved by noncompliance. All other factors were considered as "not significant." These assessment 
factors are used to determine the degree and extent of harm to the natural resources. The range of assessment extends from 
"not significant" to "extremely significant" with "significant" being in the middle. 

18. Mr. Smith testified that he does take a shower in the water but he drinks bottled water. His toilet turns 
orange. He cannot rent his other trailer which is on the same well due to the water. 

19. Barbara Christian testified as an expert in well construction rules and the application and interpretation of 
those rules. She stated muddy water is not a public health hazsLTd but that it was a nuisance to the homeowner. She stated 
that this well had a yield of 35 gallons per minute. This was a very good well because most in this area averaged 5 gallons 
per minute. She further testified that high NTUs indicates that the well was not properly developed. "Developing" a well 
means flushing the well of sediment that is in there as a result of building the well. Indications from the well construction 
record shows that the well met minimum requirements for construction. If sediment is getting into the well, a liner can be 

1192 NORTH CAROLINA REGISTER October 15, 1996 11:14 



COSTESTED CASE DECISIONS 



placed in the well to cut this off. 

20. Ms. Christian flirther testif:ed that Mr. Corriher's lab sample of 6.4 mg/1 of total suspended solids shows 
that the well was not properly developed also because prior to December 1, 1992, Respondent used "total suspended solids" 
as the standard of measure and the standard was 5. The rules were later changed so that a driller could test in the field and 
the standard of measure became 10 NTUs of turbidit)'. 

21. Danny Corriher testified that the well was 223" deep. When he dug the well, he encountered no problems; 
he saw no fractures. He further testified that to develop this well, water was pumped in from a water truck and the well was 
washed out. He observed that the water for this well was clear. Mr. Corriher testified that he has worked with his father 
since 1970 and only once has he had a problem with a well that was not discovered at the time the well was dug. He 
testified that he went back and fixed that well but that, in this case, they have not been given an opportunity to repair this 
well if in fact there is a problem. 

22. Ricky Corriher testified that he was present when the well was dug and obser\'ed no problems. The water 
was clear and clean. He went with his father and Lt. Rogers on the first visit back to the Smith home on August 10, 1994. 
The water was pumped for 45 minutes. It was clear and his father drank some of it. Mr. Smith was not there at the time 
and was not aware they were there. 

23. All of the Corrihers who testified stated that they never received a complaint regarding mud in the well 
until after Mr. Smith was required to pay the judgment the Corrihers obtained against him. The Corrihers had tried 
numerous times by mail and by telephone to contact Mr. Smith regarding payment prior to the collection proceedings. Mr. 
Smith did not appear at the collection proceeding. Mr. Smith paid the judgment in May 1994 after being advised by Lt. 
Rogers that collection could include selling his property. TTie first complaint received by the Respondent was in June 1994. 
The first complaint received by the Petitioner was after Smith had contacted the Respondent. Smith told the Petitioner that 
he was going to contact the news media and ruin their reputation. 

24. Barbara Christian testified that, although there are no rules on the length of time a contractor can be 
penalized, the agency has an unwritten policy that if the well is older than one year, the contractor would not be assessed. 
If electricity was not hooked up, the one year would not begin to run until it was. They would go past the one year if the 
owner has been cooperating with the contractor and the contractor has been intentionally delaying the remediation. 
Apparently, no policy or procedure exists for the situation, as has occurred in this case, where the owner does not cooperate 
with the contractor but the contractor is cooperative. 

25. No direct evidence was presented by either party as to the causation of sediment in this particular well. 
Because the NTUs were high on several occasions and normal on other occasions, assumptions were made by both parties. 
Barbara Christian testified that in her expert opinion, the well was not developed or "flushed out" properly at the time the 
well was dug. She did testify that an experienced well driller could tell the difference between drill cuttings in the water 
and sediment but that a distinction could not be made between mud from the surface or below. Mr. Corriher testified as 
an experienced driller and stated that in his opinion, dirt and "ropey red" mud he obser%'ed coming from a hose did not come 
from the well. Mr. Corriher's opinion is admitted pursuant to G.S. 8C-1, Rule 701, is rationally based and is helpful to 
determine the facts in this case. Mr. Corriher also believed that probably all that the well needed was to be pumped until 
it cleared. 

26. Testimony from the Corrihers regarding the threats made by Mr. Smith are found as fact. At the hearing, 
although Mr. Smith was calm on the stand, he did threaten a witness as the witness left the stand. Mr. Smith also made 
faces and gestures to the undersigned and witnesses. It is understandable why the Petitioner would not want to go back to 
the site. 

Based upon the foregoing Findings of Fact, the undersigned makes the following: 

CONCLUSIONS OF LAW 

1. Petitioner is a "well driller" or "water well contractor" as those terms are defined in G.S. 87-85(15). 



11:14 NORTH CAROLINA REGISTER October 15, 1996 1193 



CONTESTED CASE DECISIONS 



2. 15A 2C. 0107(h)(2)(B) provides that development of the well "shall include removal of formation materials, 

mud. drilling fluids and additives such that the water contains no more than (B) ten NTTJs of turbidity as suspended 

solids." 

3. An order describing remedial action is discretionary with the Respondent and was properly given in this 
case in the August 5, 1994 Notice of Violation pursuant to G.S. 87-91(b). G.S. 87-94(h) provides that no penalty shall be 
assessed until the person alleged to be in violation has been informed of the violation, notified of remedial action, which if 
taken within thirtv' days from receipt of the notice, will effect compliance, and warned that a penalty could be assessed for 
failure to comply. The Respondent followed proper procedure with the Notice of Violation. 

4. Although no evidence substantially proves that the Petitioner failed to develop the well properly, the samples 
do show NTL's over ten. The Well Construction Act appears to apply a strict liability standard to well drillers without any 
consideration of other possibilities. However, the law does allow the violator to have thirty days to correct the problem. 
In this case, Mr. Corriher, while not believing he caused the problem, attempted to determine the problem within the thirty 
days following receipt of the notice. The owner of the property made believable threats which prevented the Corrihers from 
complying with the Notice of Violation other than to put the identification plate on the well. Assessment of a penalty is 
discretionary. To do so in this circumstance is arbitrary and capricious. A common sense approach should be considered 
in this case as was done in Puerto Rico Sun QU y^ EPA , 8 F.3d 73, 77 (1st Cir. 1993): 

Agencies... are normally entitled to substantial deference so long as their decisions do not collide directly 
with substantive statutory commands and so long as procedural comers are squarely turned. This deference 
is especially marked in technical areas. But in the end an agency decision must also be rational- technically 
speaking, it must not be "arbitrary or capricious,"... Tlie requirement is not very hard to meet, but it has 
not been met here. 

The Respondent in this case followed the procedural and statuton,' commands of the Well Construction Act. However, it 
acted erroneously and capriciously when it assessed the penalty in this case. G.S. 150B-23(a)(2)&(4). 

5. Another rational basis for not assessing a penaltv' in this matter is the fact that the well had been constructed 
over fourteen months before the first complaint was made to the Respondent. Also no complaints had been made to the 
Petitioners until after they obtained satisfaction on a collection judgment and after a complaint was made to the Respondent. 
Also the well was not put into operation for months after construction. These factors make the assessment of a penalty in 
this case erroneous and capricious. G.S. 150B-23(a)(2)&(4). 

6. Apparently, the Resp>ondent has a policy for not assessing penalties if the problem arises more than a year 
after construction or electrical hook-up; however, there is no written rule, policy or guideline regarding this. To assess a 
penalty' Ln this situation merely because the complaint was made to the Respondent more than a year after construction but 
within one year of electrical hook-up would mean that the Respondent has exceeded its statutory authority by applying an 
unwritten guideline to persons that the law is intended to direct, guide and assist. G.S. 150B-23(a)(l). 

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the following: 

RECOMMENDED DECISION 

It is recommended that the Environmental .Management Commission use its discretion not to assess a penalty against 
the Petitioner in light of the substantial evidence uhich shows that the Petitioner has not been given an opportunity to comply 
nor an opportunity to determine the cause of the turbidit>' in the water, and also because of the length of time between the 
construction of the well and the complaint. 

ORDER 

It is hereby ordered that the agency serve a copy of the fmal decision on the Office of Administrative Hearings, P. 
O. Drawer 27447, Raleigh, NC 27611-7447, in accordance with G.S. 150B-36(b). 



1194 NORTH CAROLINA REGISTER October 15, 1996 11:14 



CONTESTED CASE DECISIONS 



NOTICE 

The agency making the final decision in this contested case is the Environmental Management Commission. The 
Commission is required to give each party an opportunity to file exceptions to this recommended decision and to present 
written arguments to those in the agency who will make the final decision. G.S. 150B-36(a). The agency is required by 
G.S. 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties' attorney of record. 

This the 20th day of September, 1996. 



Meg Scott Phipps 
Administrative Law Judge 



11:14 NORTH CAROLINA REGISTER October 15, 1996 1195 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. The other two, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Acupuncture 


1 


-) 


Agnculture 


Architecture 


2 


3 


Auditor 


Auctioneers 


4 


4 


Commerce 


Barber Examiners 


6 


5 


Correction 


Certified PubUc Accountant Examiners 


8 


5 


Council of State 


Chiropractic Examiners 


10 


7 


Cultural Resources 


General Contractors 


12 


8 


Elections 


Cosmetic Art Examiners 


14 


9 


Governor 


Dental Examiners 


16 


10 


Human Resources 


Dietetics/Nutntion 


17 


11 


Insurance 


Electncal Contractors 


18 


12 


Justice 


Electrolysis 


19 


13 


Labor 


Foresters 


20 


14A 


Cnme Conti-ol & Public Safety 


Geologists 


21 


15A 


Envu-onment, Health, and Natural 


Heanng Aid Dealers and Fitters 


22 




Resources 


Landscape Architects 


26 


16 


Public Education 


Landscape Contractors 


28 


17 


Revenue 


Mantal and Family Therapy 


31 


18 


Secretary of State 


Medical Examiners 


32 


19A 


Transportation 


Midwifery Joint Committee 


33 


20 


Treasurer 


Mortuary Science 


34 


*21 


Occupational Licensing Boards 


Nursing 


36 


22 


Administrative Procedures 


Nursing Home Administrators 


37 


23 


Commumty Colleges 


Occupational Therapists 


38 


24 


Independent Agencies 


Opticians 


40 


25 


State Personnel 


Optometry 


42 


26 


Administrative Hearings 


Osteopathic Examination & Reg. (Repealed) 


44 


27 


NC State Bar 


Pastoral Counselors, Fee-Based Practicing 


45 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refngeration Examiners 


60 






Samtarian Examiners 


62 






Social Work Certification 


63 






Soil Scientists 


69 






Speech & Language Pathologists & Audiologists 


64 






Substance Abuse Professionals 


68 






Therapeutic Recreation Certification 


65 






Vetennary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



1196 



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